Preview
1 Frear Stephen Schmid CSB#96089
7585 Valley Ford Road
2 Petaluma, CA 95952
Telephone:(415) 788-5957
3 Email:frearschmd@aol.com
4 Attorney for plaintiffs
5
6
7
8 SUPERIOR COURT OF THE STATE OF CALIFORNIA
9 COUNTY OF SONOMA
10
11 FREAR STEPHEN SCHMID AND Assigned for all-purposes to Dept. 19
ASTRID SCHMID,
12
Plaintiffs, Case No. SCV-266225, and consolidated cases
13 266731 and 270339
v.
14
PLAINTIFFS’ MOTION TO BIFURCATE
15 TWO ROCK FIRE DEPARTMENT, OR SEVER ACTION 270339, FOR BENCH
TRIAL AND TO STRIKE JURY
16 Defendant. DEMAND, MEMORANDUM OF POINTS
AND AUTHORITIES AND
17 DECLARATION OF FREAR STEHEN
SCHMID IN SUPPORT THEREOF
18
Date:
19 And consolidated cases Time: 3:00 p.m.
Dept. 19
20
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25
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PLAINTIFFS’ MOTION TO BIFURCATE OR SEVER ACTION 270339, FOR BENCH
TRIAL AND TO STRIKE JURY
TO THE COURT AND ALL PARTIES AND THEIR COUNSEL OF RECORD:
1
2 Pursuant to CCP §1048 and the inherent power of the Court, plaintiffs hereby
3
give notice that they hereby do and will move the Court at the above time and place
4
for an order to sever or bifurcate Case No. SCV-270339 from this consolidated action. In
5
keeping with the proposed severance of Case No. SCV-270339, plaintiffs at the same time and
6
7 place hereby do and will move to strike the jury demand in actions SCV-266225 and 266731
8 and for an order that they be tried by the Court without a jury and/or further hereby do and will
9 move for an order of proof such that any jury issues in any of the consolidated actions are
10 bifurcated until after conclusion of a bench trial on non-jury issues. These motions will be made
11
based on the complete file herein, this notice of motion, the Memorandum of Points and
12
Authorities and declaration of Frear Stephen Schmid in support hereof and such other matters
13
may properly be considered.
14
15 Dated: Nov. 7, 2023
16 s/Frear Stephen Schmid
17 Frear Stephen Schmid,
18 attorney for plaintiffs
19 Memorandum of Points and Authorities
20 INTRODUCTION
21
As set forth below, plaintiffs seek to sever/bifurcate the fraud action against TRFD (Case
22
No. SCV-270339)from the original two consolidated actions, actions SCV-266225 and 266731.
23
24 As to those two actions, there is no right to a jury trial on any issues raised thereby, and thus any
25 jury demand for either of those actions is improper and must be stricken. Plaintiffs object to any
26 jury on any matter to which the right to a jury does not attach. A jury trial in those cases will be
27
prejudicially time consuming and expenses for plaintiffs. The Court should try all non-jury issues
28
2
PLAINTIFFS’ MOTION TO BIFURCATE OR SEVER ACTION 270339, FOR BENCH
TRIAL AND TO STRIKE JURY
first, and bifurcate/sever any jury issues.
1
2
ARGUMENT
3 MOTION TO SEVER OR BIFURCATE MUST BE GRANTED
4 C C P. §1048 allows for bifurcation severance and/or setting the order of proof. The Court
5
has great discretion to grant bifurcation, severance and/or setting the order of proof. Orange
6
County v. Aloa (2019) 12 Cal. App. 5th 252, 353.
7
Case SCV-270339 was consolidated over plaintiffs’ objections. Indeed as noted by Judge
8
9 Nadler in the consolidation order of July 29, 2022, it was not even properly noticed as part of the
10 motion to consolidate. Accordingly, plaintiffs were deprived the opportunity to oppose its
11 consolidation herein by means of a written opposition. Judge Nadler expressly also noted in that
12 order that severance or bifurcation of this action might be appropriate, stating at p. 5:25-27 “The
13
court notes that Plaintiffs may seek by way of motion in limine or otherwise for the order as to
14
presentation of claims, the order of proof. or bifurcation if the trial court deems it appropriate.”
15
Case SCV-270339 involves a claim for damages only against TRFD. Most importantly the
16
17 extent of those damages are contingent on the outcome of the older consolidated cases SCV-
18 266225 and 266731. The more successful plaintiffs are in SCV-266225 and 266731., then
19 plaintiffs damages are decreased, and vice versa the less successful plaintiffs are in SCV-266225
20
and 266731, then their damages increase. Nothing in SCV-266225 and 266731 will serve as res
21
judicata to bar plaintiffs claim of fraud.
22
The consolidated actions SCV-266225 and 266731 involve issues strictly for a bench trial
23
only, and no jury is appropriate for them. Case#266225 against TRFD seeks strictly equitable
24
25 relief in the form of declaratory and injunctive relief. Case #266731 for mandamus, injunctive
26 and declaratory relief as against the County likewise does not permit a jury trial, and neither the
27 County nor plaintiffs have ever requested a jury for that matter. The California Supreme Court
28
3
PLAINTIFFS’ MOTION TO BIFURCATE OR SEVER ACTION 270339, FOR BENCH
TRIAL AND TO STRIKE JURY
confirms the rule: "It is well established that, in a case involving both legal and equitable issues,
1
2 the trial court may proceed to try the equitable issues first, without a jury ..., and that if the court's
3 determination of those issues is also dispositive of the legal issues, nothing further remains to be
4 tried by a jury." Raedeke v. Gibraltar Sav. & Loan Assn. (1974)10 Cal. 3d 665,671
5
This motion is most appropriate here where the other actions, for injunctive and declaratory
6
relief as against TRFD (SCV-266225) and mandamus, injunctive and declaratory relief as
7
against the County (SCV-266731) are only appropriate for a bench trial. As noted, the Supreme
8
Court, confirm this rule: "It is well established that, in a case involving both legal and equitable
9
issues, the trial court may proceed to try the equitable issues first, without a jury ..., and that if
10
the court's determination of those issues is also dispositive of the legal issues, nothing further
11
remains to be tried by a jury." Raedeke v. Gibraltar Sav. & Loan Assn. ,supra. Indeed, reviewing
12
courts have emphasized that the better practice for trial courts is to decide equitable issues first
13
for the explicit reason that a jury trial on any legal issues may be avoided. " Trial courts are
14
encouraged to apply this `equity first' rule because it promotes judicial economy by potentially
15 obviating the need for a jury trial." Darbun Enterprises, Inc. v. San Fernando Community
16 Hospital (2015) 239 Cal. App. 4th 399, 408-409. Here, the fraud action cannot be tried without
17 a determination of plaintiffs’ rights in the two original actions. Plaintiffs cannot completely prove
18 its damages until they know the extent of their success in the original actions.
19 Thus, this Case No. SCV-270339 must be severed or bifurcated.
20
21 THE JURY DEMAND MUST BE STRICKEN AND THE CASES MUST PROCEED AS
22 A BENCH TRIAL
23 Plaintiffs object to any jury on any matter to which the right to a jury does not attach.
24 As a matter of law, as to the actions for injunctive and declaratory relief as against TRFD
25 (SCV-266225) and mandamus, injunctive and declaratory relief as against the County (SCV-
26 266731) they are only appropriate for a bench trial and the jury demand stricken. There is no
27 claim for monetary damages as plaintiffs filed in SCV-266225 their election of remedies very
28 early in the case on July 27, 2020. It states:
4
PLAINTIFFS’ MOTION TO BIFURCATE OR SEVER ACTION 270339, FOR BENCH
TRIAL AND TO STRIKE JURY
1
TO ALL PARTIES AND THEIR RESPECTIVE COUNSEL: Notice is hereby given
2 that plaintiffs hereby make their election of remedies in the complaint herein.
3 Plaintiff hereby knowingly forego and waive any monetary damage remedies,
including any punitive, compensatory, civil, special, and /or general damages, sought
4 in the complaint or its prayer, and
elect to proceed and seek declaratory, injunctive, writs of prohibitions and/or
5 mandate or such other non-monetary damages remedies permissible statutorily, at
law and/or in equity.
6
7
As stated by the First Appellate District in Wolford v. Thomas (1987) 190 Cal . App. 3rd
8
347, 253-254:
9
If an action is essentially equitable in nature and the relief sought "'depends upon
10
the application of equitable doctrines,'" there is no right to a jury trial. (C & K
11 Engineering Contractors v. Amber Steel Co. (1978) 23 Cal. 3d 1, 9 [151 Cal. Rptr.
323, 587 P.2d 1136].)
12
In Southern Pac. Transportation Co. v. Superior Court (1976) 58 Cal. App. 3d 433,
13 437 [129 Cal. Rptr. 912], in deciding that a good faith improver action does not
14 entitle a plaintiff to a jury trial, the Court of Appeal stated: "The fact that damages
is one of a full range of possible remedies does not guarantee real parties the right
15 to a jury .... We recognize that where a complaint raises both legal and equitable
issues, a jury trial may be obtained upon the issues raised by the legal cause.
16 [Citation.] Here, however, there is no possibility of severing the legal from the
equitable." (Ibid)
17
18 [1b] In the instant case, the gist of the Wolfords' complaint was clearly to abate a
public and private nuisance and for injunctive and declaratory relief. California
19 courts recognize that a party is not entitled to a jury trial in an action to abate a
nuisance. (People v. One 1941 Chevrolet Coupe (1951) 37 Cal. 2d 283, 298 [231
20 P.2d 832]; People v. Frangadakis (1960) 184 Cal. App. 2d 540, 545-546 [7 Cal.
Rptr. 776]; City of Turlock v. Bristow (1930) 103 Cal. App. 750, 756-757 [284 P.
21
962].) Furthermore, the bulk of the relief sought here, under both the nuisance and
22 easement claims, was equitable. In addition to the prayer for abatement, the
Wolfords requested that the Thomases be enjoined from maintaining the penthouse
23 addition and that the City of San Francisco be authorized to demolish it if the
Thomases did [190 Cal. App. 3d 354] not. Also, the Wolfords prayed for a
24 declaration that they possessed an easement for air, light, heat, ventilation and view
over the Thomases' roof. The fact that the Wolfords' complaint also sought
25
"damages according to proof" does not convert this essentially equitable action into
26 a legal one. It was infeasible for the court to sever the legal claim from the
equitable one here. Moreover, the damage claims were incidental to the equitable
27 claims. If the Wolfords were to prevail and damages were awarded, it would be
primarily on a basis of the court fashioning a remedy other than demolishing the
28 penthouse. One of the aspects of an equitable action is the balancing of the interests
5
PLAINTIFFS’ MOTION TO BIFURCATE OR SEVER ACTION 270339, FOR BENCH
TRIAL AND TO STRIKE JURY
of the parties. To do equity a trial court must have various options available to it,
1
including that of awarding damages. In sum, the trial court's action of granting the
2 Thomases' motion for court trial was correct. The Wolfords were not entitled to a
jury trial on their claims.
3
4
5 A JURY TRIAL WOULD BE PRDJUDICIAL TO PLAINTIFFS
6 Plaintiffs are entitled to a bench trial as to the actions for injunctive and declaratory relief
7 as against TRFD (SCV-266225) and mandamus, injunctive and declaratory relief as against
the County (SCV-266731). To have these matters tried to a jury would cost plaintiffs needless
8
time and money in increased court costs for jury fees and length of the trial and preparation
9
therefor. Plaintiff should not have to carry this expense when there is absolutely no legal basis
10
for a jury. Plaintiff should not have to prepare jury instructions and trial preparation for matters
11
that as a matter of law are not to be tried to a jury. Having these cases tried to a jury would be
12
prejudicial to plaintiffs by needlessly making the trial of these matters onerous and expensive,
13
effectively interfering with their Constitutional right to petition.
14
CONCLUSION
15
For the foregoing reasons, the Court should sever/bifurcate the fraud action. As to the other
16
actions, for injunctive and declaratory relief as against TRFD (SCV-266225) and mandamus,
17
injunctive and declaratory relief as against the County (SCV-266731), they are only
18
appropriate for a bench trial and the jury demand should be stricken and no jury trial allowed.
19
In all events as to all issues to which a right to a jury might attach, the Court should conduct a
20
bench trial first as to all non- jury issues. Plaintiffs object to any jury on any matter to which the
21
right to a jury does not attach. The Court should deny a jury trial as to all non-jury issues. To
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permit a jury trial would be onerous and prejudicial to plaintiffs and interfere with their
23
Constitutional right to petition.
24
Dated: Nov. 7, 2023 Respectfully submitted,
25
s/Frear Stephen Schmid
26
27
Frear Stephen Schmid
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6
PLAINTIFFS’ MOTION TO BIFURCATE OR SEVER ACTION 270339, FOR BENCH
TRIAL AND TO STRIKE JURY
1
2 DECLARATION OF FREAR STEPHEN SCHMID IN SUPPORT OF MOTIONS
3
4 I, Frear Stephen Schmid declare as follows:
5 I am one of the plaintiffs in these consolidated actions.
6
Plaintiffs are entitled to have action SCV-270339 severed or bifurcated as the damages sought
7
therein are a function of the result in SCV-266225 and 266731.
8
Plaintiffs are entitled to a bench trial as to the actions for injunctive and declaratory relief as
9
10 against TRFD (SCV-266225) and mandamus, injunctive and declaratory relief as against the
11 County (SCV-266731). To have these matters tried to a jury would cost plaintiffs needless time
12 and money in increased court costs for jury fees and length of the trial and preparation therefor.
13
Plaintiff should not have to carry this expense when there is absolutely no legal basis for a jury.
14
Plaintiff should not have to prepare jury instructions and other jury trial preparation for matters
15
that as a matter of law are not to be tried to a jury. Having these cases tried to a jury would be
16
prejudicial to plaintiffs as making the trial of these matters needlessly onerous and expensive,
17
18 effectively interfering with their right to petition.
19 I declare under penalty of perjury that the foregoing declaration is true and correct, and that
20 this declaration was signed in Sonoma County on Nov. 7, 2023
21
s/Frear Stephen Schmid
22
___________________
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Frear Stephen Schmid
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PLAINTIFFS’ MOTION TO BIFURCATE OR SEVER ACTION 270339, FOR BENCH
TRIAL AND TO STRIKE JURY
Re: Schmid v.Two Rock Fire Department.
1 Superior Court of California, County of Sonoma
Case No. SCV-266225
2
PROOF OF SERVICE
3 I declare that:
4 I am over the age of 18; my home address is 7585 Valley Ford Road, Petaluma, CA and
5
not a party to the within action
6
On Nov.7, 2023, I served the following document(s):
7 PLAINTIFFS’ MOTION TO BIFURCATE OR SEVER ACTION 270339, FOR BENCH
TRIAL AND TO STRIKE JURY DEMAND
8
9
in said action as follows:
10
I personally electronically served said document by email on the following individuals at the
11 following shown email addresses:
12
Addressessees:
13
John Borba Borba
14 Frizzell Kerns, P.C.
50 Old Courthouse Sq. Ste.605
15 Santa Rosa, CA 95404
john@bfklegal.com samanthavance@bfklegal.com
16 Attorneys for Defendant Two Rock Fire Department
17 MICHAEL A. KING,
Deputy County Counsel
18 575 Administration Drive, Room 105A
Santa Rosa, California 95403-2815
19 E-mail: Michael.King@sonoma-county.org
20 Attorneys for Defendant County of Sonoma
21 I declare under penalty of perjury under the laws of the State of California that the
foregoing is true and correct and that this declaration was executed Nov. 7, 2023, at Petaluma,
22 CA.
s/ Tristan Schmid
23 _____________________________
Tristan Schmid
24 .
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PLAINTIFFS’ MOTION TO BIFURCATE OR SEVER ACTION 270339, FOR BENCH
TRIAL AND TO STRIKE JURY
Preview
1 Frear Stephen Schmid CSB#96089 7585 Valley Ford Road 2 Petaluma, CA 95952 Telephone:(415) 788-5957 3 Email:frearschmd@aol.com 4 Attorney for plaintiffs 5 6 7 8 SUPERIOR COURT OF THE STATE OF CALIFORNIA 9 COUNTY OF SONOMA 10 11 FREAR STEPHEN SCHMID AND Assigned for all-purposes to Dept. 19 ASTRID SCHMID, 12 Plaintiffs, Case No. SCV-266225, and consolidated cases 13 266731 and 270339 v. 14 PLAINTIFFS’ MOTION TO BIFURCATE 15 TWO ROCK FIRE DEPARTMENT, OR SEVER ACTION 270339, FOR BENCH TRIAL AND TO STRIKE JURY 16 Defendant. DEMAND, MEMORANDUM OF POINTS AND AUTHORITIES AND 17 DECLARATION OF FREAR STEHEN SCHMID IN SUPPORT THEREOF 18 Date: 19 And consolidated cases Time: 3:00 p.m. Dept. 19 20 21 22 23 24 25 26 27 28 1 PLAINTIFFS’ MOTION TO BIFURCATE OR SEVER ACTION 270339, FOR BENCH TRIAL AND TO STRIKE JURY TO THE COURT AND ALL PARTIES AND THEIR COUNSEL OF RECORD: 1 2 Pursuant to CCP §1048 and the inherent power of the Court, plaintiffs hereby 3 give notice that they hereby do and will move the Court at the above time and place 4 for an order to sever or bifurcate Case No. SCV-270339 from this consolidated action. In 5 keeping with the proposed severance of Case No. SCV-270339, plaintiffs at the same time and 6 7 place hereby do and will move to strike the jury demand in actions SCV-266225 and 266731 8 and for an order that they be tried by the Court without a jury and/or further hereby do and will 9 move for an order of proof such that any jury issues in any of the consolidated actions are 10 bifurcated until after conclusion of a bench trial on non-jury issues. These motions will be made 11 based on the complete file herein, this notice of motion, the Memorandum of Points and 12 Authorities and declaration of Frear Stephen Schmid in support hereof and such other matters 13 may properly be considered. 14 15 Dated: Nov. 7, 2023 16 s/Frear Stephen Schmid 17 Frear Stephen Schmid, 18 attorney for plaintiffs 19 Memorandum of Points and Authorities 20 INTRODUCTION 21 As set forth below, plaintiffs seek to sever/bifurcate the fraud action against TRFD (Case 22 No. SCV-270339)from the original two consolidated actions, actions SCV-266225 and 266731. 23 24 As to those two actions, there is no right to a jury trial on any issues raised thereby, and thus any 25 jury demand for either of those actions is improper and must be stricken. Plaintiffs object to any 26 jury on any matter to which the right to a jury does not attach. A jury trial in those cases will be 27 prejudicially time consuming and expenses for plaintiffs. The Court should try all non-jury issues 28 2 PLAINTIFFS’ MOTION TO BIFURCATE OR SEVER ACTION 270339, FOR BENCH TRIAL AND TO STRIKE JURY first, and bifurcate/sever any jury issues. 1 2 ARGUMENT 3 MOTION TO SEVER OR BIFURCATE MUST BE GRANTED 4 C C P. §1048 allows for bifurcation severance and/or setting the order of proof. The Court 5 has great discretion to grant bifurcation, severance and/or setting the order of proof. Orange 6 County v. Aloa (2019) 12 Cal. App. 5th 252, 353. 7 Case SCV-270339 was consolidated over plaintiffs’ objections. Indeed as noted by Judge 8 9 Nadler in the consolidation order of July 29, 2022, it was not even properly noticed as part of the 10 motion to consolidate. Accordingly, plaintiffs were deprived the opportunity to oppose its 11 consolidation herein by means of a written opposition. Judge Nadler expressly also noted in that 12 order that severance or bifurcation of this action might be appropriate, stating at p. 5:25-27 “The 13 court notes that Plaintiffs may seek by way of motion in limine or otherwise for the order as to 14 presentation of claims, the order of proof. or bifurcation if the trial court deems it appropriate.” 15 Case SCV-270339 involves a claim for damages only against TRFD. Most importantly the 16 17 extent of those damages are contingent on the outcome of the older consolidated cases SCV- 18 266225 and 266731. The more successful plaintiffs are in SCV-266225 and 266731., then 19 plaintiffs damages are decreased, and vice versa the less successful plaintiffs are in SCV-266225 20 and 266731, then their damages increase. Nothing in SCV-266225 and 266731 will serve as res 21 judicata to bar plaintiffs claim of fraud. 22 The consolidated actions SCV-266225 and 266731 involve issues strictly for a bench trial 23 only, and no jury is appropriate for them. Case#266225 against TRFD seeks strictly equitable 24 25 relief in the form of declaratory and injunctive relief. Case #266731 for mandamus, injunctive 26 and declaratory relief as against the County likewise does not permit a jury trial, and neither the 27 County nor plaintiffs have ever requested a jury for that matter. The California Supreme Court 28 3 PLAINTIFFS’ MOTION TO BIFURCATE OR SEVER ACTION 270339, FOR BENCH TRIAL AND TO STRIKE JURY confirms the rule: "It is well established that, in a case involving both legal and equitable issues, 1 2 the trial court may proceed to try the equitable issues first, without a jury ..., and that if the court's 3 determination of those issues is also dispositive of the legal issues, nothing further remains to be 4 tried by a jury." Raedeke v. Gibraltar Sav. & Loan Assn. (1974)10 Cal. 3d 665,671 5 This motion is most appropriate here where the other actions, for injunctive and declaratory 6 relief as against TRFD (SCV-266225) and mandamus, injunctive and declaratory relief as 7 against the County (SCV-266731) are only appropriate for a bench trial. As noted, the Supreme 8 Court, confirm this rule: "It is well established that, in a case involving both legal and equitable 9 issues, the trial court may proceed to try the equitable issues first, without a jury ..., and that if 10 the court's determination of those issues is also dispositive of the legal issues, nothing further 11 remains to be tried by a jury." Raedeke v. Gibraltar Sav. & Loan Assn. ,supra. Indeed, reviewing 12 courts have emphasized that the better practice for trial courts is to decide equitable issues first 13 for the explicit reason that a jury trial on any legal issues may be avoided. " Trial courts are 14 encouraged to apply this `equity first' rule because it promotes judicial economy by potentially 15 obviating the need for a jury trial." Darbun Enterprises, Inc. v. San Fernando Community 16 Hospital (2015) 239 Cal. App. 4th 399, 408-409. Here, the fraud action cannot be tried without 17 a determination of plaintiffs’ rights in the two original actions. Plaintiffs cannot completely prove 18 its damages until they know the extent of their success in the original actions. 19 Thus, this Case No. SCV-270339 must be severed or bifurcated. 20 21 THE JURY DEMAND MUST BE STRICKEN AND THE CASES MUST PROCEED AS 22 A BENCH TRIAL 23 Plaintiffs object to any jury on any matter to which the right to a jury does not attach. 24 As a matter of law, as to the actions for injunctive and declaratory relief as against TRFD 25 (SCV-266225) and mandamus, injunctive and declaratory relief as against the County (SCV- 26 266731) they are only appropriate for a bench trial and the jury demand stricken. There is no 27 claim for monetary damages as plaintiffs filed in SCV-266225 their election of remedies very 28 early in the case on July 27, 2020. It states: 4 PLAINTIFFS’ MOTION TO BIFURCATE OR SEVER ACTION 270339, FOR BENCH TRIAL AND TO STRIKE JURY 1 TO ALL PARTIES AND THEIR RESPECTIVE COUNSEL: Notice is hereby given 2 that plaintiffs hereby make their election of remedies in the complaint herein. 3 Plaintiff hereby knowingly forego and waive any monetary damage remedies, including any punitive, compensatory, civil, special, and /or general damages, sought 4 in the complaint or its prayer, and elect to proceed and seek declaratory, injunctive, writs of prohibitions and/or 5 mandate or such other non-monetary damages remedies permissible statutorily, at law and/or in equity. 6 7 As stated by the First Appellate District in Wolford v. Thomas (1987) 190 Cal . App. 3rd 8 347, 253-254: 9 If an action is essentially equitable in nature and the relief sought "'depends upon 10 the application of equitable doctrines,'" there is no right to a jury trial. (C & K 11 Engineering Contractors v. Amber Steel Co. (1978) 23 Cal. 3d 1, 9 [151 Cal. Rptr. 323, 587 P.2d 1136].) 12 In Southern Pac. Transportation Co. v. Superior Court (1976) 58 Cal. App. 3d 433, 13 437 [129 Cal. Rptr. 912], in deciding that a good faith improver action does not 14 entitle a plaintiff to a jury trial, the Court of Appeal stated: "The fact that damages is one of a full range of possible remedies does not guarantee real parties the right 15 to a jury .... We recognize that where a complaint raises both legal and equitable issues, a jury trial may be obtained upon the issues raised by the legal cause. 16 [Citation.] Here, however, there is no possibility of severing the legal from the equitable." (Ibid) 17 18 [1b] In the instant case, the gist of the Wolfords' complaint was clearly to abate a public and private nuisance and for injunctive and declaratory relief. California 19 courts recognize that a party is not entitled to a jury trial in an action to abate a nuisance. (People v. One 1941 Chevrolet Coupe (1951) 37 Cal. 2d 283, 298 [231 20 P.2d 832]; People v. Frangadakis (1960) 184 Cal. App. 2d 540, 545-546 [7 Cal. Rptr. 776]; City of Turlock v. Bristow (1930) 103 Cal. App. 750, 756-757 [284 P. 21 962].) Furthermore, the bulk of the relief sought here, under both the nuisance and 22 easement claims, was equitable. In addition to the prayer for abatement, the Wolfords requested that the Thomases be enjoined from maintaining the penthouse 23 addition and that the City of San Francisco be authorized to demolish it if the Thomases did [190 Cal. App. 3d 354] not. Also, the Wolfords prayed for a 24 declaration that they possessed an easement for air, light, heat, ventilation and view over the Thomases' roof. The fact that the Wolfords' complaint also sought 25 "damages according to proof" does not convert this essentially equitable action into 26 a legal one. It was infeasible for the court to sever the legal claim from the equitable one here. Moreover, the damage claims were incidental to the equitable 27 claims. If the Wolfords were to prevail and damages were awarded, it would be primarily on a basis of the court fashioning a remedy other than demolishing the 28 penthouse. One of the aspects of an equitable action is the balancing of the interests 5 PLAINTIFFS’ MOTION TO BIFURCATE OR SEVER ACTION 270339, FOR BENCH TRIAL AND TO STRIKE JURY of the parties. To do equity a trial court must have various options available to it, 1 including that of awarding damages. In sum, the trial court's action of granting the 2 Thomases' motion for court trial was correct. The Wolfords were not entitled to a jury trial on their claims. 3 4 5 A JURY TRIAL WOULD BE PRDJUDICIAL TO PLAINTIFFS 6 Plaintiffs are entitled to a bench trial as to the actions for injunctive and declaratory relief 7 as against TRFD (SCV-266225) and mandamus, injunctive and declaratory relief as against the County (SCV-266731). To have these matters tried to a jury would cost plaintiffs needless 8 time and money in increased court costs for jury fees and length of the trial and preparation 9 therefor. Plaintiff should not have to carry this expense when there is absolutely no legal basis 10 for a jury. Plaintiff should not have to prepare jury instructions and trial preparation for matters 11 that as a matter of law are not to be tried to a jury. Having these cases tried to a jury would be 12 prejudicial to plaintiffs by needlessly making the trial of these matters onerous and expensive, 13 effectively interfering with their Constitutional right to petition. 14 CONCLUSION 15 For the foregoing reasons, the Court should sever/bifurcate the fraud action. As to the other 16 actions, for injunctive and declaratory relief as against TRFD (SCV-266225) and mandamus, 17 injunctive and declaratory relief as against the County (SCV-266731), they are only 18 appropriate for a bench trial and the jury demand should be stricken and no jury trial allowed. 19 In all events as to all issues to which a right to a jury might attach, the Court should conduct a 20 bench trial first as to all non- jury issues. Plaintiffs object to any jury on any matter to which the 21 right to a jury does not attach. The Court should deny a jury trial as to all non-jury issues. To 22 permit a jury trial would be onerous and prejudicial to plaintiffs and interfere with their 23 Constitutional right to petition. 24 Dated: Nov. 7, 2023 Respectfully submitted, 25 s/Frear Stephen Schmid 26 27 Frear Stephen Schmid 28 6 PLAINTIFFS’ MOTION TO BIFURCATE OR SEVER ACTION 270339, FOR BENCH TRIAL AND TO STRIKE JURY 1 2 DECLARATION OF FREAR STEPHEN SCHMID IN SUPPORT OF MOTIONS 3 4 I, Frear Stephen Schmid declare as follows: 5 I am one of the plaintiffs in these consolidated actions. 6 Plaintiffs are entitled to have action SCV-270339 severed or bifurcated as the damages sought 7 therein are a function of the result in SCV-266225 and 266731. 8 Plaintiffs are entitled to a bench trial as to the actions for injunctive and declaratory relief as 9 10 against TRFD (SCV-266225) and mandamus, injunctive and declaratory relief as against the 11 County (SCV-266731). To have these matters tried to a jury would cost plaintiffs needless time 12 and money in increased court costs for jury fees and length of the trial and preparation therefor. 13 Plaintiff should not have to carry this expense when there is absolutely no legal basis for a jury. 14 Plaintiff should not have to prepare jury instructions and other jury trial preparation for matters 15 that as a matter of law are not to be tried to a jury. Having these cases tried to a jury would be 16 prejudicial to plaintiffs as making the trial of these matters needlessly onerous and expensive, 17 18 effectively interfering with their right to petition. 19 I declare under penalty of perjury that the foregoing declaration is true and correct, and that 20 this declaration was signed in Sonoma County on Nov. 7, 2023 21 s/Frear Stephen Schmid 22 ___________________ 23 Frear Stephen Schmid 24 25 26 27 28 7 PLAINTIFFS’ MOTION TO BIFURCATE OR SEVER ACTION 270339, FOR BENCH TRIAL AND TO STRIKE JURY Re: Schmid v.Two Rock Fire Department. 1 Superior Court of California, County of Sonoma Case No. SCV-266225 2 PROOF OF SERVICE 3 I declare that: 4 I am over the age of 18; my home address is 7585 Valley Ford Road, Petaluma, CA and 5 not a party to the within action 6 On Nov.7, 2023, I served the following document(s): 7 PLAINTIFFS’ MOTION TO BIFURCATE OR SEVER ACTION 270339, FOR BENCH TRIAL AND TO STRIKE JURY DEMAND 8 9 in said action as follows: 10 I personally electronically served said document by email on the following individuals at the 11 following shown email addresses: 12 Addressessees: 13 John Borba Borba 14 Frizzell Kerns, P.C. 50 Old Courthouse Sq. Ste.605 15 Santa Rosa, CA 95404 john@bfklegal.com samanthavance@bfklegal.com 16 Attorneys for Defendant Two Rock Fire Department 17 MICHAEL A. KING, Deputy County Counsel 18 575 Administration Drive, Room 105A Santa Rosa, California 95403-2815 19 E-mail: Michael.King@sonoma-county.org 20 Attorneys for Defendant County of Sonoma 21 I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct and that this declaration was executed Nov. 7, 2023, at Petaluma, 22 CA. s/ Tristan Schmid 23 _____________________________ Tristan Schmid 24 . 25 26 27 28 8 PLAINTIFFS’ MOTION TO BIFURCATE OR SEVER ACTION 270339, FOR BENCH TRIAL AND TO STRIKE JURY