Preview
1 John E. Borba, SBN 169463
Kristen Frizzell Kerns, SBN 221384
2 Borba Frizzell Kerns, P.C.
50 Old Courthouse Square, Ste. 605
3 Santa Rosa, CA 95404
(707) 578-7000
4 Facsimile (707) 578-7003
5 Attorneys for Defendant
TWO ROCK VOLUNTEER FIRE DEPARTMENT
6
SUPERIOR COURT OF THE STATE OF CALIFORNIA
7 COUNTY OF SONOMA
8 FREAR STEPHEN SCHMID AND ) Unlimited Jurisdiction
ASTRID SCHMID, )
) Complaint Filed:
9 Plaintiffs, )
) Case No. SCV-266225 and consolidated
10 v. ) actions SCV-266731 and SCV-270339
)
) DEFENDANT TWO ROCK
11
TWO ROCK VOLUNTEER FIRE DEPARTMENT, ) VOLUNTEER FIRE DEPARTMENT’s
) OPPOSITION TO PLAINTIFFS
12 Defendant. ) MOTION FOR TO SEVER BIFURCATE
) TRIAL
13 )
) Date: 12/15/2023
) Time: 03:00 p.m.
14 ) Dept. 19
)
15 ) Honorable Oscar Pardo
)
16 )
AND CONSOLIDATED ACTIONS )
)
17 )
18
Defendant TWO ROCK VOLUNTEER FIRE DEPARTMENT (hereinafter “TRFD”)
19
opposes Plaintiffs’ FREAR STEPHEN SCHMID AND ASTRID SCHMID (hereinafter
20
“SCHMID”) Motion TO SEVER/BIFURCATE the trial of the consolidated actions. (hereinafter
21
“MOTION”).
22
I.
23
MEMORANDUM OF POINTS AND AUTHORITIES
24
25
1
26
1 Trial is set to begin on January 12, 2024, as to the consolidated actions. Plaintiffs’ Motion,
2 if granted, would result in the cases taking months to finally reach judgment, rather than a speedy
3 jury verdict and a court decision as to the non-jury issues which could be completed in January.
4 Current counsel for Defendant TFRD was not Counsel for TRFD when the actions were
5 consolidated. However, from a review of prior orders and briefing filed by all counsel it is clear
6 that Plaintiff Frear Stephan Schmid advised at the motion hearing on July 27, 2022, that he would
7 move to bifurcate the fraud case (SCV-270339) from the original case (SCV-266225). Plaintiffs
8 threat of a motion to bifurcate was even noted in Judge Nadler’s July 29, 2022, Order, at page 5:
9 25-27: “The court notes that Plaintiffs may seek by way of motion in limine or otherwise for the
10 order as to presentation of claims, the order of proof. or bifurcation if the trial court deems it
11 appropriate.” Yet Plaintiffs have waited until the eve of trial to make this motion.
12 Despite having known for more than a year that the consolidated actions would be tried
13 before a jury, Plaintiffs have waited until nearly the last moment to bring this Motion to
14 Bifurcate/Sever the matters for trial. Any suggestion by Plaintiffs to now sever the consolidated
15 actions should be rejected by this court as it would unduly prejudice the Defendants and the Court.
16 This Court has the inherent power to utilize sound discretion to determine if a trial should
17 be bifurcated and may do so up to the moment of trial. Evidence Code §320 provides that “[e]xcept
18 as otherwise provided by law, the court in its discretion shall regulate the order of proof.” As to
19 Plaintiffs’ Motion to Bifurcate/Sever the actions for trial, Plaintiffs must show good cause for such
20 an order at their request. Here, Plaintiffs simply make a demand to bifurcate/sever without any
21 supporting good cause. Plaintiff FREAR STEPHEN SCHMID claims that “having these cases
22 tried to a jury would be prejudicial to plaintiffs as making the trial of these matters needlessly
23 onerous and expensive, effectively interfering with their right to petition.” (Dec. FSS, pg 7, Lines
24 16-17.)
25
2
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1 Nowhere in SCHMID’s declaration is mention made of any undue burden on the Court, or
2 even the parties. Rather, it centers on their own alleged discomfort in the litigation that they
3 initiated.
4 Bifurcation Is Not Necessary
5 CCP §598 authorizes bifurcation “when the convenience of witnesses, the ends justice, or
6 the economy and efficiency of handling the litigation would be promoted thereby”, to order that the
7 trial of any issue or part of an issue shall precede the trial of any other issue of part of an issue.
8 (Code Civ. Proc., §598). CCP § 1048 also authorizes the court to “order a separate trial of any
9 cause of action, including a cause of action asserted in a cross complaint, or of any separate trial of
10 any separate issue or of any number of causes of action or issues,” in order to further,
11 “convenience, or to avoid prejudice, or when separate trials will be conducive to expedition and
12 economy.” (Code Civ. Proc., § 1048.)
13 While the trial court has broad discretion to determine the order of proof at trial, it must
14 only do so where bifurcation serves the interests of judicial economy. (Grappo v. Coventry
15 Financial Corp. (1991) 235 Cal. App. 3d 496, 504.). In short, where the primary objective of
16 avoiding “waste of time and money caused by the unnecessary trial of damage questions in cases
17 where the liability issue is resolved against the Plaintiff,” is not met, bifurcation of a specific issue
18 should not be ordered. (Horton v. Jones (1972) 26 Cal. App. 3d 952, 955.)
19 Plaintiffs request that the consolidated matters now be severed is essentially a last minute
20 attempt to try to convince the now assigned Judge to overturn the previous consolidation order and
21 avoid a jury before his peers, other county residents. As this Court is aware, Plaintiff alleges fraud
22 on the part of volunteer members of the non-profit TWO ROCK VALLEY FIRE DEPARTMENT.
23 While the cases present with a number of land use abatement issues raised by Plaintiffs, the
24 overriding issues are the actions of TWO ROCK VALLEY FIRE DEPARTMENT (TRFD) and
25
3
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1 personnel of Sonoma County in regards to the TRFD project to build a facility to store their fire
2 trucks when not in use.
3 Bifurcation Would Result in Undue Burden on The Parties, Court, and Witnesses
4 Whether there shall be a severance and separate trials on issues in a single action is a matter
5 within the discretion of the trial court, whose ruling will not be disturbed on appeal absent a
6 manifest abuse of discretion. (McArthur v. Shaffer (1943) 59 Cal.App.2d 724, 727, 139 P.2d
7 959.) Here, the interrelated facts demonstrate multiple trials would only impose more burden on the
8 parties, the court, and witnesses. Here, bifurcation is not necessary or practical. Bifurcation will
9 likely be an abuse of discretion.
10 The bifurcation or severance of the actions would result in duplicative testimony, added
11 expense to the represented parties, and a further burden on the court. It is certain that the same
12 members, and expert witnesses of TRFD will testify as to all issues raised in the multiple actions.
13 Similarly, TRFD will require the testimony of county employees on both the land use abatement
14 issues and the liability issues presented on the fraud claims. It is expected that documentary
15 evidence will be the same if bifurcation or severance was granted. The issues and actions of the
16 parties overlap and form a defense to Plaintiffs’ claims.
17 Instead of one cross-examination of Plaintiffs, bifurcation would result in two rounds of
18 testimony from Plaintiffs. While Plaintiffs may enjoy prolonging the case and making the
19 Defendants, and Court, expend valuable resources, the needs to wrap these matters up with the
20 least amount of burden on the court should be the main concern.
21 Here, Plaintiffs simply makes a demand to bifurcate/sever without any supporting good
22 cause. Plaintiff FREAR STEPHEN SCHMID claims that “having these cases tried to a jury would
23 be prejudicial to plaintiffs as making the trial of these matters needlessly onerous and expensive,
24 effectively interfering with their right to petition.” (Dec. FSS, pg 7, Lns, 16-17.) Nowhere in
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4
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1 SCHMID’s declaration is mention made of undue burden on the Court, the witnesses, or even the
2 parties.
3 In Horton, the court held where the primary objective of avoiding “waste of time and
4 money caused by the unnecessary trial of damage questions in cases where the liability issue is
5 resolved against the Plaintiff” is not met, bifurcation of a specific issue should not be ordered.
6 (Horton v. Jones (1972) 26 Cal. App. 3d 952, 955). While this case will not be one of admitted
7 liability, the holding supports ruling against Plaintiffs on their stated grounds to avoid incurring
8 expenses related to a jury trial. Plaintiffs expressed grounds of avoiding expense is not a valid
9 basis to grant bifurcation.
10 Plaintiff FREAR STEPHEN SCHMID is a self-represented litigant who is also a licensed
11 attorney in California. Mr. Schmid apparently also represents his wife, Defendant Astrid Schmid,
12 and claims that having a consolidated trial before a jury will cause burdensome expenses and time
13 to themselves. Such self-serving arguments should not be enough to justify bifurcation or
14 severance. It is Plaintiffs that chose to file multiple actions that later required consolidation.
15 III.
16 CONCLUSION
17 This Court should deny Plaintiffs’ motion. Plaintiffs’ request to bifurcate/sever SCV-
18 270339 should be denied as Plaintiffs have failed to set forth adequate grounds to justify
19 bifurcation/severance of the actions or issues.
20
Respectfully submitted,
21
DATED: December 4, 2023 BORBA FRIZZELL KERNS, P.C.
22
/s/ John E. Borba
23 By:
John E. Borba
24 Attorneys for Defendant Two Rock
Volunteer Fire Department
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26
Preview
1 John E. Borba, SBN 169463 Kristen Frizzell Kerns, SBN 221384 2 Borba Frizzell Kerns, P.C. 50 Old Courthouse Square, Ste. 605 3 Santa Rosa, CA 95404 (707) 578-7000 4 Facsimile (707) 578-7003 5 Attorneys for Defendant TWO ROCK VOLUNTEER FIRE DEPARTMENT 6 SUPERIOR COURT OF THE STATE OF CALIFORNIA 7 COUNTY OF SONOMA 8 FREAR STEPHEN SCHMID AND ) Unlimited Jurisdiction ASTRID SCHMID, ) ) Complaint Filed: 9 Plaintiffs, ) ) Case No. SCV-266225 and consolidated 10 v. ) actions SCV-266731 and SCV-270339 ) ) DEFENDANT TWO ROCK 11 TWO ROCK VOLUNTEER FIRE DEPARTMENT, ) VOLUNTEER FIRE DEPARTMENT’s ) OPPOSITION TO PLAINTIFFS 12 Defendant. ) MOTION FOR TO SEVER BIFURCATE ) TRIAL 13 ) ) Date: 12/15/2023 ) Time: 03:00 p.m. 14 ) Dept. 19 ) 15 ) Honorable Oscar Pardo ) 16 ) AND CONSOLIDATED ACTIONS ) ) 17 ) 18 Defendant TWO ROCK VOLUNTEER FIRE DEPARTMENT (hereinafter “TRFD”) 19 opposes Plaintiffs’ FREAR STEPHEN SCHMID AND ASTRID SCHMID (hereinafter 20 “SCHMID”) Motion TO SEVER/BIFURCATE the trial of the consolidated actions. (hereinafter 21 “MOTION”). 22 I. 23 MEMORANDUM OF POINTS AND AUTHORITIES 24 25 1 26 1 Trial is set to begin on January 12, 2024, as to the consolidated actions. Plaintiffs’ Motion, 2 if granted, would result in the cases taking months to finally reach judgment, rather than a speedy 3 jury verdict and a court decision as to the non-jury issues which could be completed in January. 4 Current counsel for Defendant TFRD was not Counsel for TRFD when the actions were 5 consolidated. However, from a review of prior orders and briefing filed by all counsel it is clear 6 that Plaintiff Frear Stephan Schmid advised at the motion hearing on July 27, 2022, that he would 7 move to bifurcate the fraud case (SCV-270339) from the original case (SCV-266225). Plaintiffs 8 threat of a motion to bifurcate was even noted in Judge Nadler’s July 29, 2022, Order, at page 5: 9 25-27: “The court notes that Plaintiffs may seek by way of motion in limine or otherwise for the 10 order as to presentation of claims, the order of proof. or bifurcation if the trial court deems it 11 appropriate.” Yet Plaintiffs have waited until the eve of trial to make this motion. 12 Despite having known for more than a year that the consolidated actions would be tried 13 before a jury, Plaintiffs have waited until nearly the last moment to bring this Motion to 14 Bifurcate/Sever the matters for trial. Any suggestion by Plaintiffs to now sever the consolidated 15 actions should be rejected by this court as it would unduly prejudice the Defendants and the Court. 16 This Court has the inherent power to utilize sound discretion to determine if a trial should 17 be bifurcated and may do so up to the moment of trial. Evidence Code §320 provides that “[e]xcept 18 as otherwise provided by law, the court in its discretion shall regulate the order of proof.” As to 19 Plaintiffs’ Motion to Bifurcate/Sever the actions for trial, Plaintiffs must show good cause for such 20 an order at their request. Here, Plaintiffs simply make a demand to bifurcate/sever without any 21 supporting good cause. Plaintiff FREAR STEPHEN SCHMID claims that “having these cases 22 tried to a jury would be prejudicial to plaintiffs as making the trial of these matters needlessly 23 onerous and expensive, effectively interfering with their right to petition.” (Dec. FSS, pg 7, Lines 24 16-17.) 25 2 26 1 Nowhere in SCHMID’s declaration is mention made of any undue burden on the Court, or 2 even the parties. Rather, it centers on their own alleged discomfort in the litigation that they 3 initiated. 4 Bifurcation Is Not Necessary 5 CCP §598 authorizes bifurcation “when the convenience of witnesses, the ends justice, or 6 the economy and efficiency of handling the litigation would be promoted thereby”, to order that the 7 trial of any issue or part of an issue shall precede the trial of any other issue of part of an issue. 8 (Code Civ. Proc., §598). CCP § 1048 also authorizes the court to “order a separate trial of any 9 cause of action, including a cause of action asserted in a cross complaint, or of any separate trial of 10 any separate issue or of any number of causes of action or issues,” in order to further, 11 “convenience, or to avoid prejudice, or when separate trials will be conducive to expedition and 12 economy.” (Code Civ. Proc., § 1048.) 13 While the trial court has broad discretion to determine the order of proof at trial, it must 14 only do so where bifurcation serves the interests of judicial economy. (Grappo v. Coventry 15 Financial Corp. (1991) 235 Cal. App. 3d 496, 504.). In short, where the primary objective of 16 avoiding “waste of time and money caused by the unnecessary trial of damage questions in cases 17 where the liability issue is resolved against the Plaintiff,” is not met, bifurcation of a specific issue 18 should not be ordered. (Horton v. Jones (1972) 26 Cal. App. 3d 952, 955.) 19 Plaintiffs request that the consolidated matters now be severed is essentially a last minute 20 attempt to try to convince the now assigned Judge to overturn the previous consolidation order and 21 avoid a jury before his peers, other county residents. As this Court is aware, Plaintiff alleges fraud 22 on the part of volunteer members of the non-profit TWO ROCK VALLEY FIRE DEPARTMENT. 23 While the cases present with a number of land use abatement issues raised by Plaintiffs, the 24 overriding issues are the actions of TWO ROCK VALLEY FIRE DEPARTMENT (TRFD) and 25 3 26 1 personnel of Sonoma County in regards to the TRFD project to build a facility to store their fire 2 trucks when not in use. 3 Bifurcation Would Result in Undue Burden on The Parties, Court, and Witnesses 4 Whether there shall be a severance and separate trials on issues in a single action is a matter 5 within the discretion of the trial court, whose ruling will not be disturbed on appeal absent a 6 manifest abuse of discretion. (McArthur v. Shaffer (1943) 59 Cal.App.2d 724, 727, 139 P.2d 7 959.) Here, the interrelated facts demonstrate multiple trials would only impose more burden on the 8 parties, the court, and witnesses. Here, bifurcation is not necessary or practical. Bifurcation will 9 likely be an abuse of discretion. 10 The bifurcation or severance of the actions would result in duplicative testimony, added 11 expense to the represented parties, and a further burden on the court. It is certain that the same 12 members, and expert witnesses of TRFD will testify as to all issues raised in the multiple actions. 13 Similarly, TRFD will require the testimony of county employees on both the land use abatement 14 issues and the liability issues presented on the fraud claims. It is expected that documentary 15 evidence will be the same if bifurcation or severance was granted. The issues and actions of the 16 parties overlap and form a defense to Plaintiffs’ claims. 17 Instead of one cross-examination of Plaintiffs, bifurcation would result in two rounds of 18 testimony from Plaintiffs. While Plaintiffs may enjoy prolonging the case and making the 19 Defendants, and Court, expend valuable resources, the needs to wrap these matters up with the 20 least amount of burden on the court should be the main concern. 21 Here, Plaintiffs simply makes a demand to bifurcate/sever without any supporting good 22 cause. Plaintiff FREAR STEPHEN SCHMID claims that “having these cases tried to a jury would 23 be prejudicial to plaintiffs as making the trial of these matters needlessly onerous and expensive, 24 effectively interfering with their right to petition.” (Dec. FSS, pg 7, Lns, 16-17.) Nowhere in 25 4 26 1 SCHMID’s declaration is mention made of undue burden on the Court, the witnesses, or even the 2 parties. 3 In Horton, the court held where the primary objective of avoiding “waste of time and 4 money caused by the unnecessary trial of damage questions in cases where the liability issue is 5 resolved against the Plaintiff” is not met, bifurcation of a specific issue should not be ordered. 6 (Horton v. Jones (1972) 26 Cal. App. 3d 952, 955). While this case will not be one of admitted 7 liability, the holding supports ruling against Plaintiffs on their stated grounds to avoid incurring 8 expenses related to a jury trial. Plaintiffs expressed grounds of avoiding expense is not a valid 9 basis to grant bifurcation. 10 Plaintiff FREAR STEPHEN SCHMID is a self-represented litigant who is also a licensed 11 attorney in California. Mr. Schmid apparently also represents his wife, Defendant Astrid Schmid, 12 and claims that having a consolidated trial before a jury will cause burdensome expenses and time 13 to themselves. Such self-serving arguments should not be enough to justify bifurcation or 14 severance. It is Plaintiffs that chose to file multiple actions that later required consolidation. 15 III. 16 CONCLUSION 17 This Court should deny Plaintiffs’ motion. Plaintiffs’ request to bifurcate/sever SCV- 18 270339 should be denied as Plaintiffs have failed to set forth adequate grounds to justify 19 bifurcation/severance of the actions or issues. 20 Respectfully submitted, 21 DATED: December 4, 2023 BORBA FRIZZELL KERNS, P.C. 22 /s/ John E. Borba 23 By: John E. Borba 24 Attorneys for Defendant Two Rock Volunteer Fire Department 25 5 26