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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 actions
ASTRID SCHMID, SCV-266731 and SCV-270339
11
Plaintiffs, DEFENDANT TWO ROCK VOLUNTEER
12 FIRE DEPARTMENT’S EX PARTE
v. APPLICATION TO HOLD OSC RE
13 CONTEMPT AND MOTION TO DISSOLVE
PRELIMINARY INJUNCTION ON SAME
14 TWO ROCK VOLUNTEER FIRE HEARING CALENDAR ON OCTOBER 4,
DEPARTMENT, 2023; AND SUPPORTING DECLARATION
15 OF WILLIAM L. ADAMS
Defendant.
16 Date: August 28, 2023
Time: 10:30 am
17 Dept.: 19
Judge: Hon. Oscar A. Pardo
18 AND CONSOLIDATED ACTIONS.
19
20 TO ALL PARTIES AND ATTORNEYS OF RECORD:
21 PLEASE TAKE NOTICE that Defendant TWO ROCK VOLUNTEER FIRE
22 DEPARTMENT, also known as TWO ROCK FIRE DEPARTMENT, also known as TWO ROCK
23 VOLUNTEER FIRE DEPARTMENT (“Two Rock Fire”) pursuant to Rules 3.1200-3.1207 of the
24 California Rules of Court, and other applicable law, will appear ex parte on August 28, 2023 at
25 10:30 a.m. in Department 19 of the Sonoma County Superior Court located at 3055 Cleveland
26 Avenue, Suite 200, Santa Rosa, CA 95403, to request the Court both the Order to Show Cause re
27 Contempt against Two Rock Fire for alleged violations of the Preliminary Injunction issued
28
1
DEFENDANT TWO ROCK FIRE’S EX PARTE APPLICATION TO HOLD OSC RE CONTEMPT
AND MOTION TO DISSOLVE PRELIMINARY INJUNCTION ON SAME HEARING
CALENDAR ON OCTOBER 4, 2023
1 August 4, 2021, and Two Rock Fire’s Motion to Dissolve the Preliminary Injunction reset to
2 October 4, 2023 at 3:00 p.m. in Department 19.
3 INTRODUCTION
4 Since 1927, Two Rock Fire has been a Volunteer Fire Company organized and operating
5 pursuant California Health and Safety Code section 14825 and serving as the designated public
6 safety agency in Sonoma County unincorporated areas to provide fire and emergency medical
7 services to its immediate community, as well as regional and Statewide mutual aid as needed.
8 Earlier this year, the Sonoma County Local Agency Formation Commission approved the
9 reorganization of the Gold Ridge Fire Protection District, a public fire agency formed and
10 operating pursuant to the 1987 California Fire Protection District Law (Health and Safety Code
11 section 13800 et seq.), which included the annexation of Two Rock Fire.
12 EXIGENCY FOR EX PARTE RELIEF
13 Given the Court holiday on September 4, 2023 (and thus no ex parte calendar that week for
14 Department 19), there is a need to bring this request now to reset the September 8, 2023 hearing
15 for the pending OSC re Contempt. If relief is not provided now, the OSC will be heard on
16 September 8, 2023 before Two Rock Fire has the opportunity to present an ex parte on Monday
17 September 11, 2023. Additionally, equity and the material change in circumstances for the
18 Preliminary Injunction creating operational challenges to the essential public safety services
19 provided by Two Rock Fire and now its successor in interest Gold Ridge Fire Protection District,
20 support this Court making a short continuance of the OSC evidentiary hearing so that the OSC and
21 Two Rock Fire’s Motion to Dissolve the Preliminary Injunction can be heard on the same calendar
22 on October 4, 2023 – which will provide Plaintiffs’ the full statutory time period under CCP
23 section 1013 to prepare and file any opposition papers before the combined hearing.
24 PROCEDURAL CHRONOLOGY
25 This relevant procedural chronology will focus on the two-year-old Preliminary Injunction
26 issued August 4, 2021 (and stayed, appealed, and modified over the two-year period) is based
27 entirely on the Court’s own records and files, as well as the electronic docket, in this multi-year-
28
2
DEFENDANT TWO ROCK FIRE’S EX PARTE APPLICATION TO HOLD OSC RE CONTEMPT
AND MOTION TO DISSOLVE PRELIMINARY INJUNCTION ON SAME HEARING
CALENDAR ON OCTOBER 4, 2023
1 consolidated case. Accordingly, Two Rock Fire requests the Court take judicial notice of its own
2 records and files pursuant to Evidence Code section 452(d), including the documents attached as
3 Exhibits to the accompanying supporting declaration of William L. Adams.
4 On August 4, 2021, this Court issued its “Final Ruling on Motion for Preliminary
5 Injunction Final Order” (hereinafter “Preliminary Injunction”), addressing and restricting several
6 Two Rock Fire public safety and operational capabilities at the fire department building project.
7 On August 18, 2021, Two Rock Fire timely filed Motions for Reconsideration and Stay of
8 the Court’s Preliminary Injunction.
9 On September 9, 2021, Two Rock Fire filed an appeal of the Preliminary Injunction in
10 First District Court of Appeal Case No. A163421.
11 On October 18, 2021, in light of the pending Motions for Reconsideration and Stay, as
12 well as the pending appeal in case number A163421, the Court sua sponte vacated the November
13 19, 2021, trial date, and a further Case Management Conference for trial setting was scheduled for
14 March 24, 2022.
15 On February 14, 2022, Two Rock Fire filed notice with the Trial Court that it was
16 withdrawing its appeal in case number A163421.
17 On February 17, 2022, after months of extensive briefings by the parties, based on
18 demonstrated and documented evidence of public safety and operational concerns, the Trial Court
19 revised the Preliminary Injunction and issued its “Ruling on Motion to Stay and Motion for
20 Reconsideration” (hereinafter “Modification Order”). The Modification Order demonstrates this
21 Court’s reliance on and admission into evidence the testimony in several declarations from Two
22 Rock Fire chief officers and County planning staff.
23 On February 22, 2022, Plaintiffs filed an appeal challenging the Modification Order in
24 First District Court of Appeal Case No. A164620. The Modification Order remained subject to
25 appeal until issuance of the Court of Appeal opinion on May 11, 2023.
26 On May 11, 2023 (after a 21 month stay of the Preliminary Injunction and Modification
27 Order), the Court of Appeal reversed the Modification Order solely on procedural grounds.
28
3
DEFENDANT TWO ROCK FIRE’S EX PARTE APPLICATION TO HOLD OSC RE CONTEMPT
AND MOTION TO DISSOLVE PRELIMINARY INJUNCTION ON SAME HEARING
CALENDAR ON OCTOBER 4, 2023
1 On July 12, 2023, the Remittitur from the Court of Appeal because effective after two
2 years of appeals and modifications, which Plaintiffs argues constitutes the first date for any
3 potential violations of the Preliminary Injunction.
4 On August 7, 2023, the Court granted Plaintiffs’ ex parte request and issued an Order to
5 Show Cause re Contempt (“OSC”) for alleged violations by Two Rock Fire of the Preliminary
6 Injunction, which the Court set for hearing on September 8, 2023.
7 On August 25, 2023, Two Rock Fire filed and served on Plaintiffs its Motion to Dissolve
8 the Preliminary Injunction pursuant to the Court’s inherent authority under Code of Civil
9 Procedure section 533 1, and requesting the OSC be hearing be reset to October 4, 2023, to be
10 heard on the same calendar as Two Rock Fire’s Motion to Dissolve the Preliminary Injunction.
11 Also on August 25, 2023, Two Rock Fire filed and served on Plaintiffs its initial response
12 to the OSC 2 and requested an evidentiary hearing, as well as requesting the OSC be briefly
13 continued and reset to October 4, 2023, to be heard on the same calendar as Two Rock Fire’s
14 Motion to Dissolve the Preliminary Injunction.
15 MEMORANDUM OF POINTS AND AUTHORITIES
16 The Court has inherent authority to manage its calendars and coordinate the hearings on
17 related matters concerning the Preliminary Injunction in this consolidated case. Two Rock Fire
18 unsuccessfully requested Plaintiffs stipulate to a coordinated hearing for both the OSC and Motion
19 to Dissolve the Preliminary Injunction on either October 4 or October 11, 2023, for the Court to
20 comprehensively evaluate the efficacy of perpetuating the Preliminary Injunction. Plaintiffs
21 declined to stipulate and stated they were unavailable on October 11, 2023. Accordingly, based on
22 Plaintiffs’ availability, Two Rock Fire make this request for a single hearing date on October 4,
23 2023.
24
25 1
Attached as Exhibit “A” to the supporting declaration of Two Rock Fire’s counsel William L. Adams
(“Adams Decl.”) is a copy of Two Rock Fire’s Motion to Dissolve the Preliminary Injunction (without
26 extensive exhibits that are already part of this Court’s file).
27 2
Attached as Exhibit “B” to Adams Decl. is a copy of Two Rock Fire’s initial response to the OSC
(without extensive exhibits that are already part of this Court’s file).
28
4
DEFENDANT TWO ROCK FIRE’S EX PARTE APPLICATION TO HOLD OSC RE CONTEMPT
AND MOTION TO DISSOLVE PRELIMINARY INJUNCTION ON SAME HEARING
CALENDAR ON OCTOBER 4, 2023
1 Two Rock Fire is not seeking to have the Court determine whether to continue to allow the
2 Preliminary Injunction to potentially criminalize the public safety activities of the regional fire
3 department in the southwest portion of Sonoma County. The issue of whether the Preliminary
4 Injunction that limits the essential public safety services of the largest regional fire agency in
5 southwest Sonoma County should remain after in place after more than two years of stasis and a
6 lack of exigent circumstances constitutes a material change in the facts upon which the injunction
7 was granted, and the ends of justice would be served by the dissolution of the injunction rather
8 than a continuing spiral of contempt proceedings ahead of the January 12, 2024 trial date.
9 The same interest of justice rationale and changed circumstances that prompted this Court
10 to issue the Modification Order, continue to apply and vest inherit authority for this Court to stay
11 or dissolve its prior orders in the Preliminary Injunction – particularly given the Preliminary
12 Injunction at issue that has grown stale sitting on the shelf for nearly two years.
13 Regarding the inherent authority of this Court to modify its previously issued preliminary
14 injunction, Code of Civil Procedure section 533 provides:
15 “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
16 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
17 has changed, or that the ends of justice would be served by the modification or
dissolution of the injunction or temporary restraining order.”
18
19 Specifically addressing Code of Civil Procedure section 533, the California Supreme Court
20 held in 2018: “Courts retain power to vacate or modify such [preliminary injunction] orders
21 at any point. (See Sontag Chain Stores Co. v. Superior Court (1941) 18 Cal.2d 92, 94–
22 95 (Sontag Chain Stores) [an injunctive order, “it has uniformly been held, is always subject, upon
23 a proper showing, to modification or dissolution by the court which rendered it”]:see also Union
24 Interchange, Inc. v. Savage (1959) 52 Cal.2d 601, 604 (Union Interchange)([“When the decree is
25 continuing in nature, directed at future events, it must be subject to adaptation as events may
26 shape the need”].)” (In re Butler (2018) 4 Cal. 5th 728, 738.) (emphasis added.)
27 ///
28
5
DEFENDANT TWO ROCK FIRE’S EX PARTE APPLICATION TO HOLD OSC RE CONTEMPT
AND MOTION TO DISSOLVE PRELIMINARY INJUNCTION ON SAME HEARING
CALENDAR ON OCTOBER 4, 2023
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 email chain attached as Exhibit “C” to Adams Decl., on Tuesday,
7 August 22, 2023, counsel for Two Rock Fire timely notified Plaintiffs and the County of the
8 substance of this ex parte application, the relief sought, and the date, time, location of the hearing
9 for the Court’s ex parte calendar on August 28, 2023 – and requested Plaintiffs stipulate to a
10 combined hearing date on either October 4, 2023, or October 11, 2023.
11 On Thursday , August 24, 2023, Plaintiff Frear Stephen Schmid acknowledged notice and
12 responded to Two Rock Fire and the County that Plaintiffs’ declined to stipulate and would
13 oppose this ex parte. Plaintiffs also provided information that they were unavailable on October
14 11, 2023, but did not indicate any unavailability on for a combined hearing on October 4, 2023.
15 CONCLUSION
16 This Court can and should exercise its inherent authority to stay or vacate the Preliminary
17 Injunction issued August 4, 2021. To be heard on the same calendar of this Court on October 4,
18 2023, or a date thereafter convenient to the Court, other than October 11, 2023. A proposed Order
19 is provided for the convenience of the Court.
20 Dated: August 27, 2023 WILLIAM L. ADAMS, PC
21
22 By:
William L. Adams, Counsel for Defendant
23 TWO ROCK VOLUNTEER FIRE DEPARTMENT
24
25
26
27
28
6
DEFENDANT TWO ROCK FIRE’S EX PARTE APPLICATION TO HOLD OSC RE CONTEMPT
AND MOTION TO DISSOLVE PRELIMINARY INJUNCTION ON SAME HEARING
CALENDAR ON OCTOBER 4, 2023
1 SUPPORTING DECLARATION OF WILLIAM L. ADAMS
2 I, William L. Adams, declare:
3 1. I am an attorney duly licensed to practice before all Courts in the State of
4 California. I am the attorney of record for Defendant TWO ROCK FIRE DEPARTMENT, also
5 known as TWO ROCK VOLUNTEER FIRE DEPARTMENT (“Two Rock Fire”). I have been an
6 attorney for 29 years; was elected by my peers and served as President of the Sonoma County Bar
7 Association in 2004; and represent multiple fire agencies in several counties throughout the State
8 of California.
9 2. I have personal knowledge of the legal, procedural, and factual issues in this matter.
10 I make this Declaration in support of Two Rock Fire’s ex parte application to reset and hold the
11 Order to Show Cause re Two Rock Fire’s alleged violations of Preliminary Injunction on the same
12 calendar on October 4, 2023 with Two Rock Fire’s Motion to Dissolve the Preliminary
13 Injunction. The information in the ex parte application s and the following information is true and
14 of my own personal knowledge, and if called as a witness, I would competently testify thereto.
15 Additionally, the Court is respectfully requested to take judicial notice of the documentary
16 exhibits attached hereto pursuant to Evidence Code sections 451 et seq.; as well as the Court’s
17 own records and files in this case consolidated case SCV-266225, and the concurrent ongoing case
18 of Schmids v, ThompsonGas, LLC, Two Rock Fire, and County of Sonoma, Sonoma County
19 Superior Court Case No. SCV-270322.
20 3. Since 1927, Two Rock Fire has been a Volunteer Fire Company organized and
21 operating pursuant California Health and Safety Code section 14825 and serving as the designated
22 public safety agency in Sonoma County unincorporated areas to provide fire and emergency
23 medical services to its immediate community, as well as regional and Statewide mutual aid as
24 needed. Earlier this year, the Sonoma County Local Agency Formation Commission approved the
25 reorganization of the Gold Ridge Fire Protection District, organized and operating in the
26 southwestern portion of Sonoma County, pursuant to the California Fire Protection District Law of
27
28
7
DEFENDANT TWO ROCK FIRE’S EX PARTE APPLICATION TO HOLD OSC RE CONTEMPT
AND MOTION TO DISSOLVE PRELIMINARY INJUNCTION ON SAME HEARING
CALENDAR ON OCTOBER 4, 2023
1 1987 (California Health and Safety Code section 13800 et seq.), to include the annexation of Two
2 Rock Fire.
3 4. Attached hereto as Exhibit “A” is true and correct copy of Two Rock Fire’s
4 Motion to Dissolve the Preliminary Injunction (without the extensive redundant exhibits that are
5 already in the Court’s file and my supporting declaration.) Based on availability provided by
6 Plaintiffs, the Motion to Dissolve specifically requests the Motion and OSC be reset to the same
7 calendar on October 4, 2023.
8 5. Attached hereto as Exhibit “B” is true and correct copy of Two Rock Fire’s initial
9 response to the OSC and request for an evidentiary hearing (without the extensive redundant
10 exhibits that are already in the Court’s file and my supporting declaration.) Based on availability
11 provided by Plaintiffs, Two Rock Fire’s initial response to the OSC specifically requests the OSC
12 and Motion to Dissolve be reset to the same calendar on October 4, 2023.
13 6. Attached hereto as Exhibit “C” is a true and correct copy of an email chain
14 documenting notice of the ex parte application between myself and Plaintiff Frear Stephen
15 Schmid. On Tuesday, August 22, 2023, counsel for Two Rock Fire timely notified Plaintiffs and
16 the County of the substance of this ex parte application, the relief sought, and the date, time,
17 location of the hearing for the Court’s ex parte calendar on August 28, 2023 – and requested
18 Plaintiffs stipulate to a combined hearing date on either October 4, 2023, or October 11, 2023.
19 On Thursday , August 24, 2023, Plaintiff Frear Stephen Schmid acknowledged notice and
20 responded to Two Rock Fire and the County that Plaintiffs’ declined to stipulate and would
21 oppose this ex parte. Plaintiffs also provided information that they were unavailable on October
22 11, 2023, but did not indicate any unavailability on for a combined hearing on October 4, 2023.
23 I declare under penalty of perjury, under the laws of the State of California of the United
24 States of America, that the foregoing is true and correct, and that this declaration was executed in
25 August 27, 2023, at Windsor, California.
26
27
William L. Adams
28
8
DEFENDANT TWO ROCK FIRE’S EX PARTE APPLICATION TO HOLD OSC RE CONTEMPT
AND MOTION TO DISSOLVE PRELIMINARY INJUNCTION ON SAME HEARING
CALENDAR ON OCTOBER 4, 2023
EXHIBIT A
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 actions
ASTRID SCHMID, SCV-266731 and SCV-270339
11
Plaintiffs,
12 DEFENDANT TWO ROCK VOLUNTEER
v. FIRE DEPARTMENT’S MOTION TO
13 DISSOLVE PRELIMINARY INJUNCTION
ISSUED AUGUST 4, 2021
14 TWO ROCK VOLUNTEER FIRE [CCP § 533]
DEPARTMENT,
15
Defendant. Date:
16 Time: 3:00 pm
Dept.: 19
17 AND CONSOLIDATED ACTIONS. Judge: Hon. Oscar A. Pardo
18
19 TO ALL PARTIES AND ATTORNEYS OF RECORD:
20 PLEASE TAKE NOTICE that Defendant TWO ROCK VOLUNTEER FIRE DEPARTMENT,
21 also known as TWO ROCK FIRE DEPARTMENT (“Two Rock Fire”), pursuant Code of Civil
22 Procedure 1 section 533, hereby submits its Motion to Dissolve the Preliminary Injunction issued August
23 4, 2021. The hearing on this Motion will be conducted at the date, time and location listed above in
24 Department 19 of the Sonoma County Superior Court located at 3055 Cleveland Avenue, Suite 200,
25 Santa Rosa, CA 95403. For multiple and independent grounds set forth in detail, the Motion should be
26 granted.
27
28 1
All statutory references hereinafter are to the Code of Civil Procedure unless otherwise noted.
1
DEFENDANT TWO ROCK FIRE’S MOTION TO DISSOLVE
PRELIMINARY INJUNCTION ISSUED AUGUST 4, 2021
1 I. INTRODUCTION
2 Since 1927, Two Rock Fire has been a Volunteer Fire Company organized and operating
3 pursuant California Health and Safety Code section 14825 and serving as the designated public safety
4 agency in Sonoma County unincorporated areas to provide fire and emergency medical services to its
5 immediate community, as well as regional and Statewide mutual aid as needed. Earlier this year, the
6 Sonoma County Local Agency Formation Commission approved the reorganization of the Gold Ridge
7 Fire Protection District, a public fire agency formed and operating pursuant to the 1987 California Fire
8 Protection District Law (Health and Safety Code section 13800 et seq.), which included the annexation
9 of Two Rock Fire.
10 Continuing the more than two-year-old Preliminary Injunction will impose negative operational
11 consequences on essential public safety services (as this Court previously determined in February 2022).
12 The Motion will be based on this Memorandum; the supporting declaration of Two Rock Fire counsel
13 William L. Adams; the Court’s own files and records in this matter, including testimonial evidence
14 already received and relied upon by the Court; and such further pleadings and arguments to be received
15 and considered by the Court.
16 II. PROCEDURAL CHRONOLOGY 2
17 In 2020, in two separate lawsuits, Plaintiffs sued the Two Rock Fire and County of Sonoma
18 (“County”), for allegations of violation of zoning and building regulations and ordinances arising from
19 the County’s permitting and approval of Two Rock Fire’s construction, occupancy, and operations at a
20 new fire department building on property owned by Two Rock Fire located at Sonoma County
21 Assessor’s Parcel Number 022-140-017 (the “subject property”). This permitting and approval by the
22 County included a propane tank, gas line plumbing and a propane-fueled industrial dehumidifying heater
23 system. In the fall of 2020, these two separate lawsuits were consolidated by stipulation under SCV-
24 266225.
25
26
2
Pursuant to Evidence Code section 452, et. seq., the Court is respectfully requested to take judicial notice of its
27 own records, files and proceeding in the various concurrent Sonoma County Superior Court cases cited herein, as
well as the documents and records provided as exhibits to the accompanying supporting declaration of William L.
28 Adams (“Adams Decl.”)
2
DEFENDANT TWO ROCK FIRE’S MOTION TO DISSOLVE
PRELIMINARY INJUNCTION ISSUED AUGUST 4, 2021
1 On August 4, 2021, Sonoma County Superior Court Judge Gary Nadler issued a Preliminary
2 Injunction against Two Rock Fire in this case 3, which, in relevant part, greatly restricted the essential
3 public safety and community fire and emergency services that could be provided by Two Rock Fire,
4 which prompted Two Rock Fire to immediately file an appeal which stayed the Preliminary Injunction.
5 However, in his Order entitled “Ruling on Motion to Stay and Motion for Reconsideration” entered on
6 February 17, 2022 4, Judge Nadler expressly modified the Preliminary Injunction to address and resolve
7 most of the negative operational consequences created by the Preliminary Injunction. Plaintiffs
8 immediately filed an appeal of the Modification Order.
9 As the Court is aware, since 2020, Plaintiffs have concurrently filed several lawsuits against the
10 same parties, arising out of the same subject matter, operative facts, and issues as the Schmid v. TRVFD
11 case. These include a Federal lawsuit in the United States District Court for the Northern District of
12 California, Schmid v. County of Sonoma, Case No. 3:21-cv-01920-JD, which the trial court ruled
13 “involve[ed] the same parties and operative facts.” There are also three additional lawsuits based on
14 Plaintiffs’ threats and intimidation after Two Rock Fire and its vendors began to take actions in
15 compliance with the Modification Order: a lawsuit against ThompsonGas, Two Rock Fire’s (and
16 Plaintiffs’) propane fuel vendor, entitled Schmid v. Thompsongas, Sonoma County Superior Court Case
17 No. SCV-270322 filed March 4, 2022; a second case alleging fraud against Two Rock Fire entitled
18 Schmid v. Two Rock Fire Department, Sonoma County Superior Court case number SCV-270399, filed
19 March 7, 2022, seeking $500,000.00 in general and additional punitive damages (which was
20 consolidated into the Schmid v. TRVFD case in July 2022); and a lawsuit against the Two Rock Fire
21 exhaust venting contractor and the County, Schmid v. Air Exchange Inc. and County of Sonoma,
22 Sonoma County Superior Court case number SCV-270568, filed April 11, 2022.
23 ///
24
25 3
Attached as Exhibit “A” to Adams Decl. is a true and copy of the Preliminary Injunction issued August 4, 2021
26 (“Preliminary Injunction” or “PI”).
4
Attached as Exhibit “B” to Adams Decl. is a true and copy of the Modification Order entered February 17,
27 2022 (“Modification Order” or “MO”). The Modification Order is provided to document this Court’s reliance
on and admission into evidence the testimony in several declarations from Two Rock Fire chief officers and
28 County planning staff.
3
DEFENDANT TWO ROCK FIRE’S MOTION TO DISSOLVE
PRELIMINARY INJUNCTION ISSUED AUGUST 4, 2021
1 On May 1, 2023, Plaintiffs filed their unverified Second Amended Complaint in SCV-270322,
2 reprising the seven Causes of Action against ThompsonGas from the First Amended Complaint; naming
3 three additional new Defendants (Two Rock Fire, County, and Glatfelter Group), alleging 11 new
4 Causes of Action, and seeking general and punitive monetary damages.
5 On May 11, 2023 (after a 21 month stay of the Preliminary Injunction and Modification Order),
6 the Court of Appeal reversed the Modification Order solely on procedural grounds. 5 The Modification
7 Order is provided to document this Court’s reliance on and admission into evidence the testimony in
8 several declarations from Two Rock Fire chief officers and County planning staff.
9 The Court of Appeal recognized the very limited procedural grounds for setting aside this
10 Court’s Modification Order. No substantive determinations were made by the Court of Appeal – rather
11 the opinion includes explicit language concerning solely a procedural instead of substantive basis for
12 reversal: “While the mistake may seem like a technicality, the courts rely on parties to file the correct
13 forms with the correct courts, according to the rules.” (A164620 Opinion, p. 3). The Court of Appeal
14 concluded by stating “The error requires reversal, so we will not consider the Schmids’ further
15 contentions that the modification order improperly allowed the department to engage in “ ‘criminally
16 proscribed‘ “ conduct and was unjustified by changed circumstances or to serve the ends of justice. (See
17 Code.Civ.Proc., § 533.)” (A164620 Opinion, p. 4).
18 On July 12, 2023, the Remittitur from the Court of Appeal because effective after two years of
19 appeals, stays, and modifications of the Preliminary Injunction, which Plaintiffs conceded constitutes the
20 first date for any potential violations of the Preliminary Injunction. 6
21 III. REQUEST FOR A SINGLE HEARING DATE WITH PENDING CONTEMPT FOR
22 ALLEGED VIOLATIONS OF THE PRELIMINARY INJUNCTION
23 Two Rock Fire requests this Motion to Dissolve the Preliminary Injunction be considered on the
24 same calendar as the pending OSC re Contempt against Two Rock Fire for alleged violations of the
25
26
5
Attached as Exhibit “C” to Adams Decl. is a true and correct copy of the First District Court of Appeal
Opinion in case number A164620 issued May 11, 2023.
27 6
See Plaintiffs’ Application for Contempt dated August 7, 2023, page 8, lines 6-8 (“Remittitur of the plaintiffs’
successful appeal of the void modification order issued on July 12, 2023. Thus, the appellate decision is final,
28 and this Court has jurisdiction to consider this application.”)
4
DEFENDANT TWO ROCK FIRE’S MOTION TO DISSOLVE
PRELIMINARY INJUNCTION ISSUED AUGUST 4, 2021
1 Preliminary Injunction, the Response to which is filed concurrently with this Motion on August 25,
2 2023. The issue of whether the Preliminary Injunction that limits the essential public safety services of
3 the largest regional fire agency in southwest Sonoma County should remain after in place after more
4 than two years of stasis and a lack of exigent circumstances constitutes a material change in the facts
5 upon which the injunction was granted, and the ends of justice would be served by the dissolution of the
6 injunction rather than a continuing spiral of contempt proceedings ahead of the January 12, 2024 trial
7 date.
8 Two Rock Fire unsuccessfully requested Plaintiffs stipulate to this coordinated hearing on either
9 October 4 or October 11, 2023, for the Court to comprehensively evaluate the efficacy of perpetuating
10 the Preliminary Injunction – Plaintiffs declined to stipulate and stated they were unavailable on October
11 4, 2023. 7 Accordingly, based on Plaintiffs’ availability, Two Rock Fire will make this request for a
12 single hearing date on October 4, 2023, at the Court’s ex parte calendar on August 28, 2023.
13 IV. POINTS AND AUTHORITIES
14 A. SECTION 533 PROVIDE AUTHORITY TO DISSOLVE PRELIMINARY INJUNCTION
15 Regarding the inherent authority of a Trial Court to modify its previously issued preliminary
16 injunction, section 533 provides:
17 “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 in the facts upon
18 which the injunction or temporary restraining order was granted, that the law upon
which the injunction or temporary restraining order was granted has changed, or that
19 the ends of justice would be served by the modification or dissolution of the injunction
or temporary restraining order.”
20
21 Specifically addressing Code of Civil Procedure section 533, the California Supreme Court held
22 in 2018: “Courts retain power to vacate or modify such [preliminary injunction] orders at any
23 point. (See Sontag Chain Stores Co. v. Superior Court (1941) 18 Cal.2d 92, 94–95 (Sontag Chain
24 Stores) [an injunctive order, “it has uniformly been held, is always subject, upon a proper showing, to
25 modification or dissolution by the court which rendered it”]:see also Union Interchange, Inc. v.
26 Savage (1959) 52 Cal.2d 601, 604 (Union Interchange)([“When the decree is continuing in nature,
27
28 7
See the email chain between counsel attached as Exhibit “G” and paragraph 12 to Adams Decl.
5
DEFENDANT TWO ROCK FIRE’S MOTION TO DISSOLVE
PRELIMINARY INJUNCTION ISSUED AUGUST 4, 2021
1 directed at future events, it must be subject to adaptation as events may shape the need”].)” (In re
2 Butler (2018) 4 Cal. 5th 728, 738.) (emphasis added.)
3 This Court made a determination back in February 2022 based on additional information
4 regarding the negative public safety and operational consequence that became known as the
5 consequences of the Preliminary Injunction – and these determinations constituted changed facts subject
6 to application of the interest of justice test. In the intervening 18 months, Plaintiffs have deliberately
7 continued to complicate their allegations and resolution of this matter by filing a morass of overlapping
8 and contradictory lawsuits, causes of action, and claims regarding the fire department building project.
9 The material change of facts and ends of justice factors that supports the Court’s decision to
10 dissolve the Preliminary Injunction are available in the evidence already before the Court. (See Evid.
11 Code § 411 (evidence of one witness is “sufficient proof of any fact”) The factual determinations and
12 operational consequences considered and accepted from Two Rock Fire Battalion Chief Lori Anello
13 regarding potential safety issues arising from the operational consequences of the Preliminary Injunction
14 (MO,2:17 through 3:24); specifically the need to modify parking lot restrictions for Two Rock Fire
15 responding to emergency calls (id., 3:12-20), and the need to use of the County-approved propane-
16 fueled industrial dehumidifying to maintain and avoid mold and other damage to firefighting equipment
17 (Id., 3:22-24). 8 This Court also considered and accepted the testimony of Two Rock Battalion Chief
18 (and now Fire Marshal of the Gold Ridge Fire Protection District) Darrin DeCarli (id., 3:25 through
19 4:8), that the use of the existing propane-fueled industrial heater was necessary “in order to prevent
20 moisture and growth of contaminants on and inside the trucks [and] personal protective equipment” for
21 the Two Rock firefighters. (Id., 3:26-27.) 9 Finally, this Court considered and accepted the testimony of
22 Nathan Quarles, Deputy Director of Engineering with the Sonoma County Permit and Resources
23 Department (which oversees Use Permits, building and zoning code enforcement in the unincorporated
24
25
8
Attached as Exhibit “D” to Adams Decl. is a true and correct copy of the three (3) page declaration of Two
Rock Fire Battalion Chief Lori Anello dated August 18, 2021, which has already been accepted as credible and
26 persuasive direct evidence by the Court in this case.
9
Attached as Exhibit “E” to Adams Decl. is a true and correct copy the seven (7) page declaration of Gold
27 Ridge Fire Protection District Division Chief and Fire Marshal Darrin DeCarli. Exhibit “F” includes a copy of
Chief DeCarli’s previous two(2) declaration dated November 5, 2021, filed in this case, which has already been
28 as credible and persuasive direct evidence by the Court in this case.
6
DEFENDANT TWO ROCK FIRE’S MOTION TO DISSOLVE
PRELIMINARY INJUNCTION ISSUED AUGUST 4, 2021
1 areas of Sonoma County – including the Two Rock Fire building project) that “the [Use] permit
2 references the installation and inspection of the propane heater” and that the ‘heater was permitted under
3 the building permit’; that it was installed per code and manufacturing instructions; and that the heater
4 does not change the occupancy of the structure.” 10 (Id., 4:20-23.)
5 B. PRELIMINARY INJUNCTION HAS BECOME DEFACTO PERMANENT INJUNCTION
6 The Preliminary Injunction expressly mentions revisiting the restrictions placed on the fire
7 department at a future hearing - “pending the outcome of the upcoming hearing as to the issuance of a
8 permanent injunction hearing.” (PI, 14:18-19.) Between the hearing on July 28, 2021, and issuance
9 thereafter of the Preliminary Injunction on August 4, 2021, the Sonoma County Superior Court
10 electronic docket shows no hearing on the issuance of a permanent injunction at any time prior to the
11 issuance of the Modification Order on February 17, 2022, or any time thereafter. After two years of
12 stays and modifications, and now with the Remittitur effective July 12, 2023 – the reality is that the
13 Preliminary Injunction became a de facto Permanent Injunction – without any due process opportunity
14 for relief by Two Rock Fire or substantive review by the Court.
15 The Preliminary Injunction specifically distinguishes between what Plaintiffs “claim to be
16 violations” and what might ultimately “in fact” be violations: “The court construes these only to the
17 extent that they demonstrate Defendant’s acts or the condition on Defendant’s Property, and
18 demonstrate what Plaintiff’s claim to be violations, rather than the legal conclusion that the acts
19 or conditions are in fact in violation of the permit or codes.” (PI, 3:27-4:2 (emphasis added).)
20 Furthermore, after receiving testimonial evidence regarding the public safety impacts, Judge Nadler
21 expressly states in the Modification Order that there has not been a final adjudication or determination of
22 the relief sought by Plaintiffs: “The court determines that subject to the final determination of
23 injunctive relief sought, exterior lighting is not limited as provided in the Preliminary Injunction and
24 said restrictions are vacated.” (MO, 3:1-3 (emphasis added).) Where preliminary injunction specifically
25 says that it is effective until final determination of action “or until the court shall otherwise order,” trial
26
27 10
Attached as Exhibit “F” to Adams Decl. is a true and copy of the two (2) page “Declaration of Nathan Quarles
Re: Propane Tank at Two Rock Fire Dept. Garage” dated November 5, 2021, filed in this case, which has
28 already been accepted as credible and persuasive direct evidence by the Court in this case.
7
DEFENDANT TWO ROCK FIRE’S MOTION TO DISSOLVE
PRELIMINARY INJUNCTION ISSUED AUGUST 4, 2021
1 court has power to modify such injunction. (State Compensation Ins. Fund v. Maloney (1953) 121 Cal.
2 App. 2d 33.)
3 “There is no inflexible rule as to the effect of granting or denial of preliminary injunction on
4 subsequent litigation, but unless it appears that the court intended a final adjudication of the issue
5 resolved, a decision on application for preliminary injunction does not amount to a decision on the
6 ultimate rights in controversy.” (Bomberger v. McKelvey (1950) 35 Cal.2d 607, 612) “A preliminary
7 injunction is a provisional remedy, and the trial court possesses the inherent power to modify its
8 preliminary injunction which is of a continuing or executory nature.” (Huntington Life Sciences Inc. v.
9 Stop Huntington Animal Cruelty USA, Inc. (2005) 129 Cal.App.4th 1228, 1248 (emphasis in original),
10 citing City of San Marcos v. Coast Waster Management Inc. (1996) 47 Cal.App.4th 320, 328.).
11 Injunction is an extraordinary power and is to be exercised always with great caution and in those cases
12 where it fairly appears, on all the papers presented, that plaintiff will suffer irreparable injury if it is not
13 issued, or that it is necessary to preserve the estates of the parties, or that some need of hasty action
14 exists. The right must be clear, the injury impending and threatened, so as to be averted only by the
15 protective preventative process of injunction. (See generally Tiburon v. Northwestern P. R. Co. (1970) 4
16 Cal. App. 3d 160.)
17 Additionally, expansion of Plaintiffs’ cumulative claims and causes of action over the past two
18 years, which now include a monetary demand for general damages of more than $500,000.00, as well as
19 punitive damages, changes in the law and facts the Court must consider in evaluating the efficacy of the
20 Preliminary Injunction. In August 2021, the Court relied upon the fact that Plaintiffs’ claim for relief
21 was solely for injunctive relief and not monetary damages: “Plaintiffs seek injunctive and declaratory
22 relief stopping [Two Rock Fire’s] alleged violations, nuisances, and trespass.” (PI, 2:10-11.) Generally,
23 damage is not irreparable, and an injunction will not be issued where damage can be adequately
24 compensated in a monetary demand. (Helms Bakeries v. State Board of Equalization (1942) 53 Cal.
25 App. 2d 417, cert. denied, ( 1943), 318 U.S. 756, 63 S. Ct. 530, 87 L. Ed. 1129.)
26 Because the Preliminary Injunction was never intended as the final adjudication of the issues
27 between the parties, and more than two years, five more lawsuits by Plaintiffs, and three reset trial dates
28 have intervened, there is no limitation on this Court exercising its inherent authority to find the
8
DEFENDANT TWO ROCK FIRE’S MOTION TO DISSOLVE
PRELIMINARY INJUNCTION ISSUED AUGUST 4, 2021
1 Preliminary Injunction is stale and moot. Clearly, after the Preliminary Injunction spent two years in
2 stasis, Plaintiffs cannot make the requisite showing of an “immediate threat of irreparable injury.” (PI,
3 4:20.)
4 C. THE MANDATORY PRELIMINARY INJUNCTION INTERFERES WITH THE ESSENTIAL
5 PUBLIC SAFETY SERVICES PROVIDED THE FIRE DEPARTMENT
6 Section 526(b)(4) specifically restricts a preliminary injunction from being issued or maintained
7 if the injunction prevents the execution of a public statute by officer of the law for the public benefit.
8 Section 526(b)(4) applies in this case because the essential public safety services being restricted by the
9 Preliminary Injunction are public duties of Two Rock Fire and the Gold Ridge Fire Protection District
10 set forth in the Health Safety Code, section 13800 et seq. A court of equity shall not restrain any person
11 from doing that, which the law authorizes that person to do. (Dammann v. Hydraulic Clutch Co. (1920)
12 45 Cal. App. 511.) Where, as here with Two Rock Fire and the Gold Ridge Fire Protection District,
13 public interests are involved, prohibitory injunction should only be granted if all other forms of relief are
14 found inadequate. (See Peabody v. Vallejo (1935) 2 Cal. 2d 351; see also Loma Portal Civic Club v.
15 American Airlines, Inc. (1964) 61 Cal. 2d 582 (in determining availability of injunctive relief, court
16 must consider interests of third persons and of general public).) In February 2022, Judge Nadler relied
17 upon the evidence and testimony presented to identify and resolve many of the operational consequences
18 arising from the Preliminary Injunction’s unintentional interference with essential public safety services.
19 D. THE PRELIMINARY INJUNCTION RELIED IN PART ON PLAINTIFFS’ NUISANCE
20 CLAIMS – WHICH ARE STATUTORILY BARRED BY CIVIL CODE SECTION 3482
21 The Preliminary Injunction references and relies, in significant part, on Plaintiffs’ unadjudicated
22 claims for public and private nuisance. (See, PI 2:6 (Plaintiffs complain the County-approved Two Rock
23 Fire improvements “constitute a nuisance”); 2:10-11 (“Plaintiffs seek injunctive and declaratory relief
24 stopping [Two Rock Fire’s] alleged violations, nuisances, and trespass.”); PI 6:10—24 (citing case law
25 and Civil Code section 3480 regarding public nuisance allegations as potential grounds to show
26 irreparable injury – without referencing or distinguishing the statutory bar in Civil Code section 3482).)
27 However, Plaintiffs nuisance claims are barred by Civil Code section 3482, entitled “What is not
28 deemed a nuisance”, which expressly states “Nothing which is done or maintained under the express
9
DEFENDANT TWO ROCK FIRE’S MOTION TO DISSOLVE
PRELIMINARY INJUNCTION ISSUED AUGUST 4, 2021
1 authority of the statute can be deemed a nuisance.” (Civ Code § 3482.) Counties and cities have the
2 power and inherent authority to define statutory standards by which courts are to judge whether nuisance
3 exists or is barred by statutory authority. (See Bakersfield v. Miller (1966) 64 Cal. 2d 93, cert.
4 denied, (U.S. 1966), 384 U.S. 988, 86 S. Ct. 1890, 16 L. Ed. 2d 1005 (trial court did not err in refusing
5 to decide whether operation of hotel could be enjoined on basis of common–law concepts or on general
6 provisions of the Civil Code defining nuisance, where basis of the suit was hotel’s violation of city’s
7 building code regulating fire hazards); see also Woodruff v. North Bloomfield Gravel Min. Co. (C.C.D.
8 Cal. 1884) 18 F. 753 (statutory authority defense to nuisance claims can be based on state statutes and
9 municipal ordinances).) Plaintiffs’ claims for public and private nuisance are per se barred under Civil
10 Code section 3482, because the approval of regulatory authority, County of Sonoma, under the Sonoma
11 County Code for the permitting, construction, occupancy, and operations of the Two Rock Fire essential
12 services fire department facility at the subject property.
13 V. CONCLUSION
14 For the multiple and independent reasons set forth above, this Court can and should exercise its
15 inherent authority under section 533 to dissolve the Preliminary Injunction issued August 4, 2021. A
16 proposed Order is provided for the convenience of the Court.
17 Dated: August 25, 2023 WILLIAM L. ADAMS, PC
18
19 By:
William L. Adams, Counsel for Defendant
20 TWO ROCK VOLUNTEER FIRE DEPARTMENT
21
22
23
24
25
26
27
28
10
DEFENDANT TWO ROCK FIRE’S MOTION TO DISSOLVE
PRELIMINARY INJUNCTION ISSUED AUGUST 4, 2021
EXHIBIT B
1 William L. Adams SBN 166027
WILLIAM L. ADAMS, PC
2 P.O. BOX 1050
Windsor, CA 95492-1050
3 Telephone: (707) 236-2176
Em
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 actions ASTRID SCHMID, SCV-266731 and SCV-270339 11 Plaintiffs, DEFENDANT TWO ROCK VOLUNTEER 12 FIRE DEPARTMENT’S EX PARTE v. APPLICATION TO HOLD OSC RE 13 CONTEMPT AND MOTION TO DISSOLVE PRELIMINARY INJUNCTION ON SAME 14 TWO ROCK VOLUNTEER FIRE HEARING CALENDAR ON OCTOBER 4, DEPARTMENT, 2023; AND SUPPORTING DECLARATION 15 OF WILLIAM L. ADAMS Defendant. 16 Date: August 28, 2023 Time: 10:30 am 17 Dept.: 19 Judge: Hon. Oscar A. Pardo 18 AND CONSOLIDATED ACTIONS. 19 20 TO ALL PARTIES AND ATTORNEYS OF RECORD: 21 PLEASE TAKE NOTICE that Defendant TWO ROCK VOLUNTEER FIRE 22 DEPARTMENT, also known as TWO ROCK FIRE DEPARTMENT, also known as TWO ROCK 23 VOLUNTEER FIRE DEPARTMENT (“Two Rock Fire”) pursuant to Rules 3.1200-3.1207 of the 24 California Rules of Court, and other applicable law, will appear ex parte on August 28, 2023 at 25 10:30 a.m. in Department 19 of the Sonoma County Superior Court located at 3055 Cleveland 26 Avenue, Suite 200, Santa Rosa, CA 95403, to request the Court both the Order to Show Cause re 27 Contempt against Two Rock Fire for alleged violations of the Preliminary Injunction issued 28 1 DEFENDANT TWO ROCK FIRE’S EX PARTE APPLICATION TO HOLD OSC RE CONTEMPT AND MOTION TO DISSOLVE PRELIMINARY INJUNCTION ON SAME HEARING CALENDAR ON OCTOBER 4, 2023 1 August 4, 2021, and Two Rock Fire’s Motion to Dissolve the Preliminary Injunction reset to 2 October 4, 2023 at 3:00 p.m. in Department 19. 3 INTRODUCTION 4 Since 1927, Two Rock Fire has been a Volunteer Fire Company organized and operating 5 pursuant California Health and Safety Code section 14825 and serving as the designated public 6 safety agency in Sonoma County unincorporated areas to provide fire and emergency medical 7 services to its immediate community, as well as regional and Statewide mutual aid as needed. 8 Earlier this year, the Sonoma County Local Agency Formation Commission approved the 9 reorganization of the Gold Ridge Fire Protection District, a public fire agency formed and 10 operating pursuant to the 1987 California Fire Protection District Law (Health and Safety Code 11 section 13800 et seq.), which included the annexation of Two Rock Fire. 12 EXIGENCY FOR EX PARTE RELIEF 13 Given the Court holiday on September 4, 2023 (and thus no ex parte calendar that week for 14 Department 19), there is a need to bring this request now to reset the September 8, 2023 hearing 15 for the pending OSC re Contempt. If relief is not provided now, the OSC will be heard on 16 September 8, 2023 before Two Rock Fire has the opportunity to present an ex parte on Monday 17 September 11, 2023. Additionally, equity and the material change in circumstances for the 18 Preliminary Injunction creating operational challenges to the essential public safety services 19 provided by Two Rock Fire and now its successor in interest Gold Ridge Fire Protection District, 20 support this Court making a short continuance of the OSC evidentiary hearing so that the OSC and 21 Two Rock Fire’s Motion to Dissolve the Preliminary Injunction can be heard on the same calendar 22 on October 4, 2023 – which will provide Plaintiffs’ the full statutory time period under CCP 23 section 1013 to prepare and file any opposition papers before the combined hearing. 24 PROCEDURAL CHRONOLOGY 25 This relevant procedural chronology will focus on the two-year-old Preliminary Injunction 26 issued August 4, 2021 (and stayed, appealed, and modified over the two-year period) is based 27 entirely on the Court’s own records and files, as well as the electronic docket, in this multi-year- 28 2 DEFENDANT TWO ROCK FIRE’S EX PARTE APPLICATION TO HOLD OSC RE CONTEMPT AND MOTION TO DISSOLVE PRELIMINARY INJUNCTION ON SAME HEARING CALENDAR ON OCTOBER 4, 2023 1 consolidated case. Accordingly, Two Rock Fire requests the Court take judicial notice of its own 2 records and files pursuant to Evidence Code section 452(d), including the documents attached as 3 Exhibits to the accompanying supporting declaration of William L. Adams. 4 On August 4, 2021, this Court issued its “Final Ruling on Motion for Preliminary 5 Injunction Final Order” (hereinafter “Preliminary Injunction”), addressing and restricting several 6 Two Rock Fire public safety and operational capabilities at the fire department building project. 7 On August 18, 2021, Two Rock Fire timely filed Motions for Reconsideration and Stay of 8 the Court’s Preliminary Injunction. 9 On September 9, 2021, Two Rock Fire filed an appeal of the Preliminary Injunction in 10 First District Court of Appeal Case No. A163421. 11 On October 18, 2021, in light of the pending Motions for Reconsideration and Stay, as 12 well as the pending appeal in case number A163421, the Court sua sponte vacated the November 13 19, 2021, trial date, and a further Case Management Conference for trial setting was scheduled for 14 March 24, 2022. 15 On February 14, 2022, Two Rock Fire filed notice with the Trial Court that it was 16 withdrawing its appeal in case number A163421. 17 On February 17, 2022, after months of extensive briefings by the parties, based on 18 demonstrated and documented evidence of public safety and operational concerns, the Trial Court 19 revised the Preliminary Injunction and issued its “Ruling on Motion to Stay and Motion for 20 Reconsideration” (hereinafter “Modification Order”). The Modification Order demonstrates this 21 Court’s reliance on and admission into evidence the testimony in several declarations from Two 22 Rock Fire chief officers and County planning staff. 23 On February 22, 2022, Plaintiffs filed an appeal challenging the Modification Order in 24 First District Court of Appeal Case No. A164620. The Modification Order remained subject to 25 appeal until issuance of the Court of Appeal opinion on May 11, 2023. 26 On May 11, 2023 (after a 21 month stay of the Preliminary Injunction and Modification 27 Order), the Court of Appeal reversed the Modification Order solely on procedural grounds. 28 3 DEFENDANT TWO ROCK FIRE’S EX PARTE APPLICATION TO HOLD OSC RE CONTEMPT AND MOTION TO DISSOLVE PRELIMINARY INJUNCTION ON SAME HEARING CALENDAR ON OCTOBER 4, 2023 1 On July 12, 2023, the Remittitur from the Court of Appeal because effective after two 2 years of appeals and modifications, which Plaintiffs argues constitutes the first date for any 3 potential violations of the Preliminary Injunction. 4 On August 7, 2023, the Court granted Plaintiffs’ ex parte request and issued an Order to 5 Show Cause re Contempt (“OSC”) for alleged violations by Two Rock Fire of the Preliminary 6 Injunction, which the Court set for hearing on September 8, 2023. 7 On August 25, 2023, Two Rock Fire filed and served on Plaintiffs its Motion to Dissolve 8 the Preliminary Injunction pursuant to the Court’s inherent authority under Code of Civil 9 Procedure section 533 1, and requesting the OSC be hearing be reset to October 4, 2023, to be 10 heard on the same calendar as Two Rock Fire’s Motion to Dissolve the Preliminary Injunction. 11 Also on August 25, 2023, Two Rock Fire filed and served on Plaintiffs its initial response 12 to the OSC 2 and requested an evidentiary hearing, as well as requesting the OSC be briefly 13 continued and reset to October 4, 2023, to be heard on the same calendar as Two Rock Fire’s 14 Motion to Dissolve the Preliminary Injunction. 15 MEMORANDUM OF POINTS AND AUTHORITIES 16 The Court has inherent authority to manage its calendars and coordinate the hearings on 17 related matters concerning the Preliminary Injunction in this consolidated case. Two Rock Fire 18 unsuccessfully requested Plaintiffs stipulate to a coordinated hearing for both the OSC and Motion 19 to Dissolve the Preliminary Injunction on either October 4 or October 11, 2023, for the Court to 20 comprehensively evaluate the efficacy of perpetuating the Preliminary Injunction. Plaintiffs 21 declined to stipulate and stated they were unavailable on October 11, 2023. Accordingly, based on 22 Plaintiffs’ availability, Two Rock Fire make this request for a single hearing date on October 4, 23 2023. 24 25 1 Attached as Exhibit “A” to the supporting declaration of Two Rock Fire’s counsel William L. Adams (“Adams Decl.”) is a copy of Two Rock Fire’s Motion to Dissolve the Preliminary Injunction (without 26 extensive exhibits that are already part of this Court’s file). 27 2 Attached as Exhibit “B” to Adams Decl. is a copy of Two Rock Fire’s initial response to the OSC (without extensive exhibits that are already part of this Court’s file). 28 4 DEFENDANT TWO ROCK FIRE’S EX PARTE APPLICATION TO HOLD OSC RE CONTEMPT AND MOTION TO DISSOLVE PRELIMINARY INJUNCTION ON SAME HEARING CALENDAR ON OCTOBER 4, 2023 1 Two Rock Fire is not seeking to have the Court determine whether to continue to allow the 2 Preliminary Injunction to potentially criminalize the public safety activities of the regional fire 3 department in the southwest portion of Sonoma County. The issue of whether the Preliminary 4 Injunction that limits the essential public safety services of the largest regional fire agency in 5 southwest Sonoma County should remain after in place after more than two years of stasis and a 6 lack of exigent circumstances constitutes a material change in the facts upon which the injunction 7 was granted, and the ends of justice would be served by the dissolution of the injunction rather 8 than a continuing spiral of contempt proceedings ahead of the January 12, 2024 trial date. 9 The same interest of justice rationale and changed circumstances that prompted this Court 10 to issue the Modification Order, continue to apply and vest inherit authority for this Court to stay 11 or dissolve its prior orders in the Preliminary Injunction – particularly given the Preliminary 12 Injunction at issue that has grown stale sitting on the shelf for nearly two years. 13 Regarding the inherent authority of this Court to modify its previously issued preliminary 14 injunction, Code of Civil Procedure section 533 provides: 15 “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 16 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 17 has changed, or that the ends of justice would be served by the modification or dissolution of the injunction or temporary restraining order.” 18 19 Specifically addressing Code of Civil Procedure section 533, the California Supreme Court 20 held in 2018: “Courts retain power to vacate or modify such [preliminary injunction] orders 21 at any point. (See Sontag Chain Stores Co. v. Superior Court (1941) 18 Cal.2d 92, 94– 22 95 (Sontag Chain Stores) [an injunctive order, “it has uniformly been held, is always subject, upon 23 a proper showing, to modification or dissolution by the court which rendered it”]:see also Union 24 Interchange, Inc. v. Savage (1959) 52 Cal.2d 601, 604 (Union Interchange)([“When the decree is 25 continuing in nature, directed at future events, it must be subject to adaptation as events may 26 shape the need”].)” (In re Butler (2018) 4 Cal. 5th 728, 738.) (emphasis added.) 27 /// 28 5 DEFENDANT TWO ROCK FIRE’S EX PARTE APPLICATION TO HOLD OSC RE CONTEMPT AND MOTION TO DISSOLVE PRELIMINARY INJUNCTION ON SAME HEARING CALENDAR ON OCTOBER 4, 2023 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 email chain attached as Exhibit “C” to Adams Decl., on Tuesday, 7 August 22, 2023, counsel for Two Rock Fire timely notified Plaintiffs and the County of the 8 substance of this ex parte application, the relief sought, and the date, time, location of the hearing 9 for the Court’s ex parte calendar on August 28, 2023 – and requested Plaintiffs stipulate to a 10 combined hearing date on either October 4, 2023, or October 11, 2023. 11 On Thursday , August 24, 2023, Plaintiff Frear Stephen Schmid acknowledged notice and 12 responded to Two Rock Fire and the County that Plaintiffs’ declined to stipulate and would 13 oppose this ex parte. Plaintiffs also provided information that they were unavailable on October 14 11, 2023, but did not indicate any unavailability on for a combined hearing on October 4, 2023. 15 CONCLUSION 16 This Court can and should exercise its inherent authority to stay or vacate the Preliminary 17 Injunction issued August 4, 2021. To be heard on the same calendar of this Court on October 4, 18 2023, or a date thereafter convenient to the Court, other than October 11, 2023. A proposed Order 19 is provided for the convenience of the Court. 20 Dated: August 27, 2023 WILLIAM L. ADAMS, PC 21 22 By: William L. Adams, Counsel for Defendant 23 TWO ROCK VOLUNTEER FIRE DEPARTMENT 24 25 26 27 28 6 DEFENDANT TWO ROCK FIRE’S EX PARTE APPLICATION TO HOLD OSC RE CONTEMPT AND MOTION TO DISSOLVE PRELIMINARY INJUNCTION ON SAME HEARING CALENDAR ON OCTOBER 4, 2023 1 SUPPORTING DECLARATION OF WILLIAM L. ADAMS 2 I, William L. Adams, declare: 3 1. I am an attorney duly licensed to practice before all Courts in the State of 4 California. I am the attorney of record for Defendant TWO ROCK FIRE DEPARTMENT, also 5 known as TWO ROCK VOLUNTEER FIRE DEPARTMENT (“Two Rock Fire”). I have been an 6 attorney for 29 years; was elected by my peers and served as President of the Sonoma County Bar 7 Association in 2004; and represent multiple fire agencies in several counties throughout the State 8 of California. 9 2. I have personal knowledge of the legal, procedural, and factual issues in this matter. 10 I make this Declaration in support of Two Rock Fire’s ex parte application to reset and hold the 11 Order to Show Cause re Two Rock Fire’s alleged violations of Preliminary Injunction on the same 12 calendar on October 4, 2023 with Two Rock Fire’s Motion to Dissolve the Preliminary 13 Injunction. The information in the ex parte application s and the following information is true and 14 of my own personal knowledge, and if called as a witness, I would competently testify thereto. 15 Additionally, the Court is respectfully requested to take judicial notice of the documentary 16 exhibits attached hereto pursuant to Evidence Code sections 451 et seq.; as well as the Court’s 17 own records and files in this case consolidated case SCV-266225, and the concurrent ongoing case 18 of Schmids v, ThompsonGas, LLC, Two Rock Fire, and County of Sonoma, Sonoma County 19 Superior Court Case No. SCV-270322. 20 3. Since 1927, Two Rock Fire has been a Volunteer Fire Company organized and 21 operating pursuant California Health and Safety Code section 14825 and serving as the designated 22 public safety agency in Sonoma County unincorporated areas to provide fire and emergency 23 medical services to its immediate community, as well as regional and Statewide mutual aid as 24 needed. Earlier this year, the Sonoma County Local Agency Formation Commission approved the 25 reorganization of the Gold Ridge Fire Protection District, organized and operating in the 26 southwestern portion of Sonoma County, pursuant to the California Fire Protection District Law of 27 28 7 DEFENDANT TWO ROCK FIRE’S EX PARTE APPLICATION TO HOLD OSC RE CONTEMPT AND MOTION TO DISSOLVE PRELIMINARY INJUNCTION ON SAME HEARING CALENDAR ON OCTOBER 4, 2023 1 1987 (California Health and Safety Code section 13800 et seq.), to include the annexation of Two 2 Rock Fire. 3 4. Attached hereto as Exhibit “A” is true and correct copy of Two Rock Fire’s 4 Motion to Dissolve the Preliminary Injunction (without the extensive redundant exhibits that are 5 already in the Court’s file and my supporting declaration.) Based on availability provided by 6 Plaintiffs, the Motion to Dissolve specifically requests the Motion and OSC be reset to the same 7 calendar on October 4, 2023. 8 5. Attached hereto as Exhibit “B” is true and correct copy of Two Rock Fire’s initial 9 response to the OSC and request for an evidentiary hearing (without the extensive redundant 10 exhibits that are already in the Court’s file and my supporting declaration.) Based on availability 11 provided by Plaintiffs, Two Rock Fire’s initial response to the OSC specifically requests the OSC 12 and Motion to Dissolve be reset to the same calendar on October 4, 2023. 13 6. Attached hereto as Exhibit “C” is a true and correct copy of an email chain 14 documenting notice of the ex parte application between myself and Plaintiff Frear Stephen 15 Schmid. On Tuesday, August 22, 2023, counsel for Two Rock Fire timely notified Plaintiffs and 16 the County of the substance of this ex parte application, the relief sought, and the date, time, 17 location of the hearing for the Court’s ex parte calendar on August 28, 2023 – and requested 18 Plaintiffs stipulate to a combined hearing date on either October 4, 2023, or October 11, 2023. 19 On Thursday , August 24, 2023, Plaintiff Frear Stephen Schmid acknowledged notice and 20 responded to Two Rock Fire and the County that Plaintiffs’ declined to stipulate and would 21 oppose this ex parte. Plaintiffs also provided information that they were unavailable on October 22 11, 2023, but did not indicate any unavailability on for a combined hearing on October 4, 2023. 23 I declare under penalty of perjury, under the laws of the State of California of the United 24 States of America, that the foregoing is true and correct, and that this declaration was executed in 25 August 27, 2023, at Windsor, California. 26 27 William L. Adams 28 8 DEFENDANT TWO ROCK FIRE’S EX PARTE APPLICATION TO HOLD OSC RE CONTEMPT AND MOTION TO DISSOLVE PRELIMINARY INJUNCTION ON SAME HEARING CALENDAR ON OCTOBER 4, 2023 EXHIBIT A 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 actions ASTRID SCHMID, SCV-266731 and SCV-270339 11 Plaintiffs, 12 DEFENDANT TWO ROCK VOLUNTEER v. FIRE DEPARTMENT’S MOTION TO 13 DISSOLVE PRELIMINARY INJUNCTION ISSUED AUGUST 4, 2021 14 TWO ROCK VOLUNTEER FIRE [CCP § 533] DEPARTMENT, 15 Defendant. Date: 16 Time: 3:00 pm Dept.: 19 17 AND CONSOLIDATED ACTIONS. Judge: Hon. Oscar A. Pardo 18 19 TO ALL PARTIES AND ATTORNEYS OF RECORD: 20 PLEASE TAKE NOTICE that Defendant TWO ROCK VOLUNTEER FIRE DEPARTMENT, 21 also known as TWO ROCK FIRE DEPARTMENT (“Two Rock Fire”), pursuant Code of Civil 22 Procedure 1 section 533, hereby submits its Motion to Dissolve the Preliminary Injunction issued August 23 4, 2021. The hearing on this Motion will be conducted at the date, time and location listed above in 24 Department 19 of the Sonoma County Superior Court located at 3055 Cleveland Avenue, Suite 200, 25 Santa Rosa, CA 95403. For multiple and independent grounds set forth in detail, the Motion should be 26 granted. 27 28 1 All statutory references hereinafter are to the Code of Civil Procedure unless otherwise noted. 1 DEFENDANT TWO ROCK FIRE’S MOTION TO DISSOLVE PRELIMINARY INJUNCTION ISSUED AUGUST 4, 2021 1 I. INTRODUCTION 2 Since 1927, Two Rock Fire has been a Volunteer Fire Company organized and operating 3 pursuant California Health and Safety Code section 14825 and serving as the designated public safety 4 agency in Sonoma County unincorporated areas to provide fire and emergency medical services to its 5 immediate community, as well as regional and Statewide mutual aid as needed. Earlier this year, the 6 Sonoma County Local Agency Formation Commission approved the reorganization of the Gold Ridge 7 Fire Protection District, a public fire agency formed and operating pursuant to the 1987 California Fire 8 Protection District Law (Health and Safety Code section 13800 et seq.), which included the annexation 9 of Two Rock Fire. 10 Continuing the more than two-year-old Preliminary Injunction will impose negative operational 11 consequences on essential public safety services (as this Court previously determined in February 2022). 12 The Motion will be based on this Memorandum; the supporting declaration of Two Rock Fire counsel 13 William L. Adams; the Court’s own files and records in this matter, including testimonial evidence 14 already received and relied upon by the Court; and such further pleadings and arguments to be received 15 and considered by the Court. 16 II. PROCEDURAL CHRONOLOGY 2 17 In 2020, in two separate lawsuits, Plaintiffs sued the Two Rock Fire and County of Sonoma 18 (“County”), for allegations of violation of zoning and building regulations and ordinances arising from 19 the County’s permitting and approval of Two Rock Fire’s construction, occupancy, and operations at a 20 new fire department building on property owned by Two Rock Fire located at Sonoma County 21 Assessor’s Parcel Number 022-140-017 (the “subject property”). This permitting and approval by the 22 County included a propane tank, gas line plumbing and a propane-fueled industrial dehumidifying heater 23 system. In the fall of 2020, these two separate lawsuits were consolidated by stipulation under SCV- 24 266225. 25 26 2 Pursuant to Evidence Code section 452, et. seq., the Court is respectfully requested to take judicial notice of its 27 own records, files and proceeding in the various concurrent Sonoma County Superior Court cases cited herein, as well as the documents and records provided as exhibits to the accompanying supporting declaration of William L. 28 Adams (“Adams Decl.”) 2 DEFENDANT TWO ROCK FIRE’S MOTION TO DISSOLVE PRELIMINARY INJUNCTION ISSUED AUGUST 4, 2021 1 On August 4, 2021, Sonoma County Superior Court Judge Gary Nadler issued a Preliminary 2 Injunction against Two Rock Fire in this case 3, which, in relevant part, greatly restricted the essential 3 public safety and community fire and emergency services that could be provided by Two Rock Fire, 4 which prompted Two Rock Fire to immediately file an appeal which stayed the Preliminary Injunction. 5 However, in his Order entitled “Ruling on Motion to Stay and Motion for Reconsideration” entered on 6 February 17, 2022 4, Judge Nadler expressly modified the Preliminary Injunction to address and resolve 7 most of the negative operational consequences created by the Preliminary Injunction. Plaintiffs 8 immediately filed an appeal of the Modification Order. 9 As the Court is aware, since 2020, Plaintiffs have concurrently filed several lawsuits against the 10 same parties, arising out of the same subject matter, operative facts, and issues as the Schmid v. TRVFD 11 case. These include a Federal lawsuit in the United States District Court for the Northern District of 12 California, Schmid v. County of Sonoma, Case No. 3:21-cv-01920-JD, which the trial court ruled 13 “involve[ed] the same parties and operative facts.” There are also three additional lawsuits based on 14 Plaintiffs’ threats and intimidation after Two Rock Fire and its vendors began to take actions in 15 compliance with the Modification Order: a lawsuit against ThompsonGas, Two Rock Fire’s (and 16 Plaintiffs’) propane fuel vendor, entitled Schmid v. Thompsongas, Sonoma County Superior Court Case 17 No. SCV-270322 filed March 4, 2022; a second case alleging fraud against Two Rock Fire entitled 18 Schmid v. Two Rock Fire Department, Sonoma County Superior Court case number SCV-270399, filed 19 March 7, 2022, seeking $500,000.00 in general and additional punitive damages (which was 20 consolidated into the Schmid v. TRVFD case in July 2022); and a lawsuit against the Two Rock Fire 21 exhaust venting contractor and the County, Schmid v. Air Exchange Inc. and County of Sonoma, 22 Sonoma County Superior Court case number SCV-270568, filed April 11, 2022. 23 /// 24 25 3 Attached as Exhibit “A” to Adams Decl. is a true and copy of the Preliminary Injunction issued August 4, 2021 26 (“Preliminary Injunction” or “PI”). 4 Attached as Exhibit “B” to Adams Decl. is a true and copy of the Modification Order entered February 17, 27 2022 (“Modification Order” or “MO”). The Modification Order is provided to document this Court’s reliance on and admission into evidence the testimony in several declarations from Two Rock Fire chief officers and 28 County planning staff. 3 DEFENDANT TWO ROCK FIRE’S MOTION TO DISSOLVE PRELIMINARY INJUNCTION ISSUED AUGUST 4, 2021 1 On May 1, 2023, Plaintiffs filed their unverified Second Amended Complaint in SCV-270322, 2 reprising the seven Causes of Action against ThompsonGas from the First Amended Complaint; naming 3 three additional new Defendants (Two Rock Fire, County, and Glatfelter Group), alleging 11 new 4 Causes of Action, and seeking general and punitive monetary damages. 5 On May 11, 2023 (after a 21 month stay of the Preliminary Injunction and Modification Order), 6 the Court of Appeal reversed the Modification Order solely on procedural grounds. 5 The Modification 7 Order is provided to document this Court’s reliance on and admission into evidence the testimony in 8 several declarations from Two Rock Fire chief officers and County planning staff. 9 The Court of Appeal recognized the very limited procedural grounds for setting aside this 10 Court’s Modification Order. No substantive determinations were made by the Court of Appeal – rather 11 the opinion includes explicit language concerning solely a procedural instead of substantive basis for 12 reversal: “While the mistake may seem like a technicality, the courts rely on parties to file the correct 13 forms with the correct courts, according to the rules.” (A164620 Opinion, p. 3). The Court of Appeal 14 concluded by stating “The error requires reversal, so we will not consider the Schmids’ further 15 contentions that the modification order improperly allowed the department to engage in “ ‘criminally 16 proscribed‘ “ conduct and was unjustified by changed circumstances or to serve the ends of justice. (See 17 Code.Civ.Proc., § 533.)” (A164620 Opinion, p. 4). 18 On July 12, 2023, the Remittitur from the Court of Appeal because effective after two years of 19 appeals, stays, and modifications of the Preliminary Injunction, which Plaintiffs conceded constitutes the 20 first date for any potential violations of the Preliminary Injunction. 6 21 III. REQUEST FOR A SINGLE HEARING DATE WITH PENDING CONTEMPT FOR 22 ALLEGED VIOLATIONS OF THE PRELIMINARY INJUNCTION 23 Two Rock Fire requests this Motion to Dissolve the Preliminary Injunction be considered on the 24 same calendar as the pending OSC re Contempt against Two Rock Fire for alleged violations of the 25 26 5 Attached as Exhibit “C” to Adams Decl. is a true and correct copy of the First District Court of Appeal Opinion in case number A164620 issued May 11, 2023. 27 6 See Plaintiffs’ Application for Contempt dated August 7, 2023, page 8, lines 6-8 (“Remittitur of the plaintiffs’ successful appeal of the void modification order issued on July 12, 2023. Thus, the appellate decision is final, 28 and this Court has jurisdiction to consider this application.”) 4 DEFENDANT TWO ROCK FIRE’S MOTION TO DISSOLVE PRELIMINARY INJUNCTION ISSUED AUGUST 4, 2021 1 Preliminary Injunction, the Response to which is filed concurrently with this Motion on August 25, 2 2023. The issue of whether the Preliminary Injunction that limits the essential public safety services of 3 the largest regional fire agency in southwest Sonoma County should remain after in place after more 4 than two years of stasis and a lack of exigent circumstances constitutes a material change in the facts 5 upon which the injunction was granted, and the ends of justice would be served by the dissolution of the 6 injunction rather than a continuing spiral of contempt proceedings ahead of the January 12, 2024 trial 7 date. 8 Two Rock Fire unsuccessfully requested Plaintiffs stipulate to this coordinated hearing on either 9 October 4 or October 11, 2023, for the Court to comprehensively evaluate the efficacy of perpetuating 10 the Preliminary Injunction – Plaintiffs declined to stipulate and stated they were unavailable on October 11 4, 2023. 7 Accordingly, based on Plaintiffs’ availability, Two Rock Fire will make this request for a 12 single hearing date on October 4, 2023, at the Court’s ex parte calendar on August 28, 2023. 13 IV. POINTS AND AUTHORITIES 14 A. SECTION 533 PROVIDE AUTHORITY TO DISSOLVE PRELIMINARY INJUNCTION 15 Regarding the inherent authority of a Trial Court to modify its previously issued preliminary 16 injunction, section 533 provides: 17 “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 in the facts upon 18 which the injunction or temporary restraining order was granted, that the law upon which the injunction or temporary restraining order was granted has changed, or that 19 the ends of justice would be served by the modification or dissolution of the injunction or temporary restraining order.” 20 21 Specifically addressing Code of Civil Procedure section 533, the California Supreme Court held 22 in 2018: “Courts retain power to vacate or modify such [preliminary injunction] orders at any 23 point. (See Sontag Chain Stores Co. v. Superior Court (1941) 18 Cal.2d 92, 94–95 (Sontag Chain 24 Stores) [an injunctive order, “it has uniformly been held, is always subject, upon a proper showing, to 25 modification or dissolution by the court which rendered it”]:see also Union Interchange, Inc. v. 26 Savage (1959) 52 Cal.2d 601, 604 (Union Interchange)([“When the decree is continuing in nature, 27 28 7 See the email chain between counsel attached as Exhibit “G” and paragraph 12 to Adams Decl. 5 DEFENDANT TWO ROCK FIRE’S MOTION TO DISSOLVE PRELIMINARY INJUNCTION ISSUED AUGUST 4, 2021 1 directed at future events, it must be subject to adaptation as events may shape the need”].)” (In re 2 Butler (2018) 4 Cal. 5th 728, 738.) (emphasis added.) 3 This Court made a determination back in February 2022 based on additional information 4 regarding the negative public safety and operational consequence that became known as the 5 consequences of the Preliminary Injunction – and these determinations constituted changed facts subject 6 to application of the interest of justice test. In the intervening 18 months, Plaintiffs have deliberately 7 continued to complicate their allegations and resolution of this matter by filing a morass of overlapping 8 and contradictory lawsuits, causes of action, and claims regarding the fire department building project. 9 The material change of facts and ends of justice factors that supports the Court’s decision to 10 dissolve the Preliminary Injunction are available in the evidence already before the Court. (See Evid. 11 Code § 411 (evidence of one witness is “sufficient proof of any fact”) The factual determinations and 12 operational consequences considered and accepted from Two Rock Fire Battalion Chief Lori Anello 13 regarding potential safety issues arising from the operational consequences of the Preliminary Injunction 14 (MO,2:17 through 3:24); specifically the need to modify parking lot restrictions for Two Rock Fire 15 responding to emergency calls (id., 3:12-20), and the need to use of the County-approved propane- 16 fueled industrial dehumidifying to maintain and avoid mold and other damage to firefighting equipment 17 (Id., 3:22-24). 8 This Court also considered and accepted the testimony of Two Rock Battalion Chief 18 (and now Fire Marshal of the Gold Ridge Fire Protection District) Darrin DeCarli (id., 3:25 through 19 4:8), that the use of the existing propane-fueled industrial heater was necessary “in order to prevent 20 moisture and growth of contaminants on and inside the trucks [and] personal protective equipment” for 21 the Two Rock firefighters. (Id., 3:26-27.) 9 Finally, this Court considered and accepted the testimony of 22 Nathan Quarles, Deputy Director of Engineering with the Sonoma County Permit and Resources 23 Department (which oversees Use Permits, building and zoning code enforcement in the unincorporated 24 25 8 Attached as Exhibit “D” to Adams Decl. is a true and correct copy of the three (3) page declaration of Two Rock Fire Battalion Chief Lori Anello dated August 18, 2021, which has already been accepted as credible and 26 persuasive direct evidence by the Court in this case. 9 Attached as Exhibit “E” to Adams Decl. is a true and correct copy the seven (7) page declaration of Gold 27 Ridge Fire Protection District Division Chief and Fire Marshal Darrin DeCarli. Exhibit “F” includes a copy of Chief DeCarli’s previous two(2) declaration dated November 5, 2021, filed in this case, which has already been 28 as credible and persuasive direct evidence by the Court in this case. 6 DEFENDANT TWO ROCK FIRE’S MOTION TO DISSOLVE PRELIMINARY INJUNCTION ISSUED AUGUST 4, 2021 1 areas of Sonoma County – including the Two Rock Fire building project) that “the [Use] permit 2 references the installation and inspection of the propane heater” and that the ‘heater was permitted under 3 the building permit’; that it was installed per code and manufacturing instructions; and that the heater 4 does not change the occupancy of the structure.” 10 (Id., 4:20-23.) 5 B. PRELIMINARY INJUNCTION HAS BECOME DEFACTO PERMANENT INJUNCTION 6 The Preliminary Injunction expressly mentions revisiting the restrictions placed on the fire 7 department at a future hearing - “pending the outcome of the upcoming hearing as to the issuance of a 8 permanent injunction hearing.” (PI, 14:18-19.) Between the hearing on July 28, 2021, and issuance 9 thereafter of the Preliminary Injunction on August 4, 2021, the Sonoma County Superior Court 10 electronic docket shows no hearing on the issuance of a permanent injunction at any time prior to the 11 issuance of the Modification Order on February 17, 2022, or any time thereafter. After two years of 12 stays and modifications, and now with the Remittitur effective July 12, 2023 – the reality is that the 13 Preliminary Injunction became a de facto Permanent Injunction – without any due process opportunity 14 for relief by Two Rock Fire or substantive review by the Court. 15 The Preliminary Injunction specifically distinguishes between what Plaintiffs “claim to be 16 violations” and what might ultimately “in fact” be violations: “The court construes these only to the 17 extent that they demonstrate Defendant’s acts or the condition on Defendant’s Property, and 18 demonstrate what Plaintiff’s claim to be violations, rather than the legal conclusion that the acts 19 or conditions are in fact in violation of the permit or codes.” (PI, 3:27-4:2 (emphasis added).) 20 Furthermore, after receiving testimonial evidence regarding the public safety impacts, Judge Nadler 21 expressly states in the Modification Order that there has not been a final adjudication or determination of 22 the relief sought by Plaintiffs: “The court determines that subject to the final determination of 23 injunctive relief sought, exterior lighting is not limited as provided in the Preliminary Injunction and 24 said restrictions are vacated.” (MO, 3:1-3 (emphasis added).) Where preliminary injunction specifically 25 says that it is effective until final determination of action “or until the court shall otherwise order,” trial 26 27 10 Attached as Exhibit “F” to Adams Decl. is a true and copy of the two (2) page “Declaration of Nathan Quarles Re: Propane Tank at Two Rock Fire Dept. Garage” dated November 5, 2021, filed in this case, which has 28 already been accepted as credible and persuasive direct evidence by the Court in this case. 7 DEFENDANT TWO ROCK FIRE’S MOTION TO DISSOLVE PRELIMINARY INJUNCTION ISSUED AUGUST 4, 2021 1 court has power to modify such injunction. (State Compensation Ins. Fund v. Maloney (1953) 121 Cal. 2 App. 2d 33.) 3 “There is no inflexible rule as to the effect of granting or denial of preliminary injunction on 4 subsequent litigation, but unless it appears that the court intended a final adjudication of the issue 5 resolved, a decision on application for preliminary injunction does not amount to a decision on the 6 ultimate rights in controversy.” (Bomberger v. McKelvey (1950) 35 Cal.2d 607, 612) “A preliminary 7 injunction is a provisional remedy, and the trial court possesses the inherent power to modify its 8 preliminary injunction which is of a continuing or executory nature.” (Huntington Life Sciences Inc. v. 9 Stop Huntington Animal Cruelty USA, Inc. (2005) 129 Cal.App.4th 1228, 1248 (emphasis in original), 10 citing City of San Marcos v. Coast Waster Management Inc. (1996) 47 Cal.App.4th 320, 328.). 11 Injunction is an extraordinary power and is to be exercised always with great caution and in those cases 12 where it fairly appears, on all the papers presented, that plaintiff will suffer irreparable injury if it is not 13 issued, or that it is necessary to preserve the estates of the parties, or that some need of hasty action 14 exists. The right must be clear, the injury impending and threatened, so as to be averted only by the 15 protective preventative process of injunction. (See generally Tiburon v. Northwestern P. R. Co. (1970) 4 16 Cal. App. 3d 160.) 17 Additionally, expansion of Plaintiffs’ cumulative claims and causes of action over the past two 18 years, which now include a monetary demand for general damages of more than $500,000.00, as well as 19 punitive damages, changes in the law and facts the Court must consider in evaluating the efficacy of the 20 Preliminary Injunction. In August 2021, the Court relied upon the fact that Plaintiffs’ claim for relief 21 was solely for injunctive relief and not monetary damages: “Plaintiffs seek injunctive and declaratory 22 relief stopping [Two Rock Fire’s] alleged violations, nuisances, and trespass.” (PI, 2:10-11.) Generally, 23 damage is not irreparable, and an injunction will not be issued where damage can be adequately 24 compensated in a monetary demand. (Helms Bakeries v. State Board of Equalization (1942) 53 Cal. 25 App. 2d 417, cert. denied, ( 1943), 318 U.S. 756, 63 S. Ct. 530, 87 L. Ed. 1129.) 26 Because the Preliminary Injunction was never intended as the final adjudication of the issues 27 between the parties, and more than two years, five more lawsuits by Plaintiffs, and three reset trial dates 28 have intervened, there is no limitation on this Court exercising its inherent authority to find the 8 DEFENDANT TWO ROCK FIRE’S MOTION TO DISSOLVE PRELIMINARY INJUNCTION ISSUED AUGUST 4, 2021 1 Preliminary Injunction is stale and moot. Clearly, after the Preliminary Injunction spent two years in 2 stasis, Plaintiffs cannot make the requisite showing of an “immediate threat of irreparable injury.” (PI, 3 4:20.) 4 C. THE MANDATORY PRELIMINARY INJUNCTION INTERFERES WITH THE ESSENTIAL 5 PUBLIC SAFETY SERVICES PROVIDED THE FIRE DEPARTMENT 6 Section 526(b)(4) specifically restricts a preliminary injunction from being issued or maintained 7 if the injunction prevents the execution of a public statute by officer of the law for the public benefit. 8 Section 526(b)(4) applies in this case because the essential public safety services being restricted by the 9 Preliminary Injunction are public duties of Two Rock Fire and the Gold Ridge Fire Protection District 10 set forth in the Health Safety Code, section 13800 et seq. A court of equity shall not restrain any person 11 from doing that, which the law authorizes that person to do. (Dammann v. Hydraulic Clutch Co. (1920) 12 45 Cal. App. 511.) Where, as here with Two Rock Fire and the Gold Ridge Fire Protection District, 13 public interests are involved, prohibitory injunction should only be granted if all other forms of relief are 14 found inadequate. (See Peabody v. Vallejo (1935) 2 Cal. 2d 351; see also Loma Portal Civic Club v. 15 American Airlines, Inc. (1964) 61 Cal. 2d 582 (in determining availability of injunctive relief, court 16 must consider interests of third persons and of general public).) In February 2022, Judge Nadler relied 17 upon the evidence and testimony presented to identify and resolve many of the operational consequences 18 arising from the Preliminary Injunction’s unintentional interference with essential public safety services. 19 D. THE PRELIMINARY INJUNCTION RELIED IN PART ON PLAINTIFFS’ NUISANCE 20 CLAIMS – WHICH ARE STATUTORILY BARRED BY CIVIL CODE SECTION 3482 21 The Preliminary Injunction references and relies, in significant part, on Plaintiffs’ unadjudicated 22 claims for public and private nuisance. (See, PI 2:6 (Plaintiffs complain the County-approved Two Rock 23 Fire improvements “constitute a nuisance”); 2:10-11 (“Plaintiffs seek injunctive and declaratory relief 24 stopping [Two Rock Fire’s] alleged violations, nuisances, and trespass.”); PI 6:10—24 (citing case law 25 and Civil Code section 3480 regarding public nuisance allegations as potential grounds to show 26 irreparable injury – without referencing or distinguishing the statutory bar in Civil Code section 3482).) 27 However, Plaintiffs nuisance claims are barred by Civil Code section 3482, entitled “What is not 28 deemed a nuisance”, which expressly states “Nothing which is done or maintained under the express 9 DEFENDANT TWO ROCK FIRE’S MOTION TO DISSOLVE PRELIMINARY INJUNCTION ISSUED AUGUST 4, 2021 1 authority of the statute can be deemed a nuisance.” (Civ Code § 3482.) Counties and cities have the 2 power and inherent authority to define statutory standards by which courts are to judge whether nuisance 3 exists or is barred by statutory authority. (See Bakersfield v. Miller (1966) 64 Cal. 2d 93, cert. 4 denied, (U.S. 1966), 384 U.S. 988, 86 S. Ct. 1890, 16 L. Ed. 2d 1005 (trial court did not err in refusing 5 to decide whether operation of hotel could be enjoined on basis of common–law concepts or on general 6 provisions of the Civil Code defining nuisance, where basis of the suit was hotel’s violation of city’s 7 building code regulating fire hazards); see also Woodruff v. North Bloomfield Gravel Min. Co. (C.C.D. 8 Cal. 1884) 18 F. 753 (statutory authority defense to nuisance claims can be based on state statutes and 9 municipal ordinances).) Plaintiffs’ claims for public and private nuisance are per se barred under Civil 10 Code section 3482, because the approval of regulatory authority, County of Sonoma, under the Sonoma 11 County Code for the permitting, construction, occupancy, and operations of the Two Rock Fire essential 12 services fire department facility at the subject property. 13 V. CONCLUSION 14 For the multiple and independent reasons set forth above, this Court can and should exercise its 15 inherent authority under section 533 to dissolve the Preliminary Injunction issued August 4, 2021. A 16 proposed Order is provided for the convenience of the Court. 17 Dated: August 25, 2023 WILLIAM L. ADAMS, PC 18 19 By: William L. Adams, Counsel for Defendant 20 TWO ROCK VOLUNTEER FIRE DEPARTMENT 21 22 23 24 25 26 27 28 10 DEFENDANT TWO ROCK FIRE’S MOTION TO DISSOLVE PRELIMINARY INJUNCTION ISSUED AUGUST 4, 2021 EXHIBIT B 1 William L. Adams SBN 166027 WILLIAM L. ADAMS, PC 2 P.O. BOX 1050 Windsor, CA 95492-1050 3 Telephone: (707) 236-2176 Em