Preview
1 ROBERT H. PITTMAN, State Bar No. 172154
County Counsel
2 MICHAEL A. KING, State Bar No. 077014
3 Deputy County Counsel
575 Administration Drive, Room 105A
4 Santa Rosa, California 95403-2815
Telephone: (707) 565-2421
5 Facsimile: (707) 565-2624
6
Attorneys for Defendant
7 COUNTY OF SONOMA
8 SUPERIOR COURT OF THE STATE OF CALIFORNIA
9
FOR THE COUNTY OF SONOMA
10
FREAR STEPHEN SCHMID AND ASTRID Case No.: SCV-266731 consolidated with
11 SCHMID, SCV-266225 and
12 Plaintiffs
COUNTY OF SONOMA
13 CLOSING BRIEF
v.
14
TRIAL DATE: 1-16-24
15 TIME: 9:00 a.m.
COUNTY OF SONOMA,
, DEPT: 19
16
Defendant. Complaint filed:
17
7/16/2020 (SCV-266731)
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19
I. INTRODUCTION
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A. Issues
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The Writ of Mandate against the County; SCV-266731, was the subject of the trial before the
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Honorable Oscar A. Pardo in which evidence was presented from January 16 to 18, 2024. Plaintiffs Frear
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and Astrid Schmid were primarily represented by Plaintiff in pro per Frear Schmid, with assistance from
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associate counsel J. Curtis Edmondson and Plaintiff Astrid Schmid. The County was represented by
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Michael King; Real Party in Interest Two Rock Fire Dept. (“TRFD”) was represented by John Borba.
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This court trial only involved issues raised in the original action against the County of Sonoma
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(SCV-266731) pertaining to the issuance of the use permit, which preceded the construction of the Two
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Rock Fire Department garage and storage building at 7599 Valley Ford Road, Petaluma. At the outset the
County’s Closing Brief 1
1 parties discussed the scope of this portion of the case which the Court had bifurcated from the other issues
2 in the consolidated cases at the hearing on December 15, 2023. Judge Pardo generally outlined the issues:
3 1) When and how the County provided notice to Plaintiffs of the application for the use permit and
4 any right to request a hearing;
5 2) Was there a waiver of any public hearing issues raised by Plaintiffs;
6 3) What was the scope of the use permit issued on March 18, 2019; the parameters of the permit.
7 B. Evidence
8 Following the receipt of the Application for Use Permit on September 21, 2018 (Exhibit 1) 1, Permit
9 Sonoma began the lengthy discretionary process of obtaining information to approve or deny the use
10 permit. Information was provided from various sources, including additional reports, drawings, and
11 communications from Erickson Engineering, the applicant’s consultant. (Exhibits 3, 5, 6, 8) A letter was
12 sent to neighbors on about October 2, 2018. (Exhibit 2). In November 2018, Paul Martin from TRFD
13 contacted the Schmids and obtained a waiver of setback requirements for the building. (Exhibit 4) The
14 testimony is clear that setbacks are for structures, not parking areas or concrete pads for water tanks.
15 Lot coverage was calculated by two methodologies. The second methodology resulted in a determination
16 that the garage building would meet requirements since it was replacing existing repair facility and
17 outbuildings. Only as a result of this litigation, well after construction, did a recalculation determine that
18 the figures may be off by 211 sq. feet. Demolition of a single shed or garage next to the residence, would
19 resolve any issue with this miscalculation.
20 Pursuant to Sonoma County Code (“SCC”) 26-92-040(d), notice of the proposed development of
21 the parcel was posted on March 4, 2019, on 4 utility poles at and near the property being developed. The
22 same notice was mailed to neighbors on March 4 or 5, 2019. (Exhibits 9, 10). The Schmids admittedly
23 received the notice on March 6 or 7. (Testimony and Exhibit 5, Request for Admission, Response to Nos.
24 12, 13 and 14) No action was taken to finally approve the use permit until March 18, 2019. (Exhibit 12).
25 Not only is this date more than 10 days after the notice was posted and mailed to the neighbors; it is more
26 than 10 days after receipt of the notice by the Schmids. Plaintiffs took no action in response to this notice.
27 They consciously and knowingly did not request a public hearing, whatever their reason.
28
1
Joint Exhibits are numbered 1-14; Plaintiff Exhibits are numbered 101-151; County Exhibits are numbered 201-214.
County’s Closing Brief 2
1 The notice received by the Schmids, clearly described in some detail, the nature of the
2 development. More importantly, under “Additional Information”, it gave specific information about who
3 to contact if there were any questions, concerns, comments, or more information was desired. Mr. Schmid
4 was very familiar with the Permit Sonoma office in Santa Rosa and apparently had its Director on speed
5 dial. The notice also clearly advised the recipient that she or he could easily request a public hearing if the
6 recipient had any concerns about the development. Under “How to Get Involved”, the notice not only
7 advises to contact Ms. Acker, but also identifies the right to appeal any approval within 10 days after the
8 approval date. No one, not even the well-informed Mr. and Mrs. Schmid, contacted the planner, Crystal
9 Acker. No one requested a public hearing clearly mentioned in the Notice of Waiver received by the
10 Schmids and posted at the property.
11 While engaging in the lengthy and detailed process leading to the decision to approve or deny the
12 use permit, Crystal Acker discussed this specific project with her supervisor and with Permit Sonoma
13 Director Tennis Wick who had expressed specific interest in it. After the discretionary administrative
14 process, the Notice of Waiver, and after 4 additional days beyond the 10 day notice period; Ms. Acker
15 proceeded with the issuance of UPE18-0068 for the fire station garage at 7599 Valley Ford Road on March
16 18, 2019. (Exhibit 12). Even after this final administrative decision to issue the permit, there was an
17 additional 10 day appeal period for a request for a public hearing, or to raise concerns about the project.
18 As shown in the Use Permit letter and testified by Ms. Acker, numerous additional conditions
19 needed to be met and additional work was needed from other divisions of Permit Sonoma. Conditions of
20 Approval, Building/Grading Permit Application, Drainage Report Contents and Grading Permit Contents
21 were all included with the letter. (Exhibit 12, bottom p. 3)
22 After construction commenced, Mr. Schmid claims he was surprised to see a parking area next to
23 the building. He was also concerned about the grading and drainage of the lot, so he contacted Paul Martin
24 of Two Rock Fire Dept. (Exhibit 212) In his direct testimony, Plaintiff completely ignored this event in
25 November 2019. He seemed to deny any knowledge of the parking area or grading issues until February
26 25, 2020 when he visited Permit Sonoma and looked at the Permit Sonoma documents. The approval letter
27 for the use permit, and numerous drawings, etc. were all available for review in March 2019, before the
28 expiration of appeal period after the decision. These documents could easily have been sent to the Schmids
if they had requested them.
County’s Closing Brief 3
1 II. PLAINTIFFS DID NOT SHOW COUNTY ABUSED ITS DISCRETION
ISSUING THE USE PERMIT
2
3 As noted in the County’s Trial Brief, pages 8-9, Code of Civil Procedure §1094.5(a) allows an
4 inquiry into the validity of any “final administrative order or decision made as the result of a proceeding in
5 which by law a hearing is required to be given…” “The issuance of a conditional use permit is a quasi-
6 judicial administrative action reviewed under administrative mandamus procedures.” Harrington v. City of
7 Davis (2017) 16 Cal.App.5th 420, 434. “The inquiry in such a case shall extend to the questions whether
8 the respondent has proceeded without, or in excess of, jurisdiction; whether there was a fair trial; and
9 whether there was any prejudicial abuse of discretion.” Code Civ. Proc., § 1094.5 (b).
10 “In making these determinations, the reviewing court must resolve reasonable doubts in favor of the
11 administrative findings and decision.'" Craik v. County of Santa Cruz (2000) 81 Cal.App.4th 880, 884-885.
To grant the Schmids’ writ, the Court will need to find that no reasonable planner could have approved the
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conditional use permit on March 18, 2019. No evidence was presented by Plaintiffs to support that finding.
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The inquiry in this case stopped at the end of Plaintiffs’ case because they presented no evidence
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that Permit Sonoma prejudicially abused its discretion. The court presumes that the action is supported by
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substantial evidence, and Plaintiffs have the burden to demonstrate otherwise. (McAllister v. California
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Coastal Com. (2008) 169 Cal.App.4th 912, 921-922; Saad v. City of Berkeley (1994) 24 Cal.App.4th 1206,
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1212. Permit Sonoma proceeded in a manner allowed by the Sonoma County Code, the decision to approve
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the use permit was supported by detailed findings, and these findings are supported by the documentary
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evidence, as well as the informed testimony of Crystal Acker.
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While the interpretation of a statute is ultimately a question of law, a court must also defer to an
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administrative agency's interpretation of a statute involving its area of expertise, unless the interpretation
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flies in the face of the clear language and purpose of the interpreted provision. Communities for a Better
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Environment v. State Water Resources Control Bd. (2003) 109 Cal.App.4th 1089, 1104. “A court must
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extend considerable deference to an administrative agency's interpretation of its own regulations or the
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regulatory scheme that the agency implements or enforces. The agency interpretation is entitled to great
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weight unless unauthorized or clearly erroneous…” Ibid. at 1107. See also Reddell v. California Coastal
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Com. (2009) 180 Cal. App. 4th 956, in which the Court of Appeal affirmed the denial of a coastal
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development permit. The reviewing court exercises its independent judgment in reviewing the agency’s
County’s Closing Brief 4
1 interpretation of the statute and policies, but it gives deference to the determination of the agency
2 appropriate to the circumstances of the agency action. Reddell, 180 Cal.App.4th at 965.
3 III. THIS ACTION IS TIME-BARRED
4 A. Plaintiffs Did Not File or Serve this Writ Complaint Within 90 Days of the Decision
5 As discussed in detail in the County’s Trial Brief, pages 10-12, Government Code §65009(c)(1)(E)
6 required Plaintiffs to bring this writ action within 90 days after the issuance of the permit “to attack,
7 review, set aside, void, or annul any decision on the matters listed in Sections 65901 and 65903, or to
8 determine the reasonableness, legality, or validity of any condition attached to a variance, conditional use
9 permit, or any other permit.” Upon the expiration of the time limits provided for in this section, all persons
10 are barred from any further action or proceeding. Govt. Code, § 65009(e).
11 Even where no public hearing was held, the Court in 1305 Ingraham, LLC v. City of Los Angeles
12 (2019) 32 Cal. App. 5th 1253 held that the 90-day limitations period of section 65009 applied to a City's
13 project permit compliance review – the “decision.” Application of § 65009(c)(1), is not limited to
14 decisions of a legislative body but rather is determined by the underlying decision being reviewed. 1305
15 Ingraham, LLC 32 Cal. App. 5th at 1264-1265.
16 The Schmids are claiming they did not recognize that the development of a 5400 sq. foot building
17 that would house fire engines and equipment, would include parking for responding firefighters who leave
18 on those trucks wearing that equipment. Even assuming that the Schmids were somehow duped by the
19 Notice of Waiver, or they did not have an obligation to inquire further from Permit Sonoma or simply
20 request a public hearing; by November 26, 2019, they had actual notice of the parking area including their
21 misunderstanding of setbacks, as well as drainage and grading issues. (Exhibit 212).
22 Even if the statute of limitations did not start before November 26, 2019, the 90 days to file any
23 writ action, certainly expired on or about February 25, 2020, the day that Frear Stephen Schmidt visited the
24 Permit Sonoma office and viewed the file. The action was not filed any time before the Courts closed in
25 March 2020, nor even with the action against TRFD on April 15, 2020, Case No. SCV-266225.
26 As noted in the County’s Trial Brief, Govt. Code Sections 65901 and 65903 “provide for hearing
27 and decision on, ….applications for variances, conditional use permits, and other permits.” Travis v.
28 County of Santa Cruz (2004) 33 Cal.4th 757, 766, fn. 2. Section 65009, subdivision (c)(1)(E) is to be
applied broadly to all types of challenges to permits and permit conditions, as long as the challenge rests on
County’s Closing Brief 5
1 a “decision” of a local authority relating to a permit or seeks to “determine the reasonableness, legality, or
2 validity of any condition ... .” (Travis, supra, at pp. 766-768.) See also Save Lafayette Trees v. City of
3 Lafayette (2019) 32 Cal.App.5th 148, 155–156; Honig v. San Francisco Planning Dept. (2005) 127 Cal.
4 App. 4th 520, cited in the County’s Trial Brief. In Honig v. San Francisco Planning Dept. (2005) 127 Cal.
5 App. 4th 520, Government Code § 65009 applied to a writ petition challenging issuance of a building
6 permit issued in conjunction with a zoning variance since the gravamen of the writ petition was that the
7 variance was improperly granted. The Honig court also rejected the neighbor's argument that the board
8 should be estopped from asserting the statute of limitations.
9 In Hawkins v. County of Marin (1976) 54 Cal. App. 3d 586, neighboring homeowners were not
10 allowed to challenge a use permit where the action was filed after the 180 day statute of limitations (in
11 effect under former Government Code §65907 at the time and repealed in 1996).
12 B. The 90 Day Limitation Period in the Government Code applies.
13 Plaintiffs suggest in their Trial Brief that they can somehow rely upon Code of Civil Procedure
14 §1094.6 to justify the delay. Section 1094.6 also requires that the writ petition must be filed within 90 days
15 after the challenged decision becomes final. That would still be about June 17, 2019 (90 days after March
16 18, 2019). It would only be extended if within 10 days after the decision became final (March 18, 2019), a
17 written request for preparation of the administrative record is filed. Code Civ. Pro. §1094.6(d). No written
18 request for an administrative record was made even after the November 26, 2019, observations and e-mails
19 between Mr. Schmid and Paul Martin. The Schmids were certainly not relying upon any representation or
20 statement by the County in letting the time run, a time limit with which Mr. Schmid was very familiar.
21 Furthermore, C.C.P §1094.6, only applies generally to challenges to local agency decisions
22 concerning such subjects as the revocation of permits and licenses, adverse employment decisions, and the
23 imposition of administrative penalties, not this challenge. In Okasaki v. City of Elk Grove (2012) 203 Cal.
24 App. 4th 1043, 1049, the Court followed the settled rules of statutory construction that the specific statute
25 controls over the more general statute, and applied Government Code §65009 instead of Code of Civil
26 Procedure §1094.6. The Court of Appeal affirmed the demurrer to the writ challenge to a variance by
27 adjoining owners that was filed more than 90 days after the city council had approved the variance.
28 Appellants had even requested the city prepare an administrative record, but did not file the writ action.
County’s Closing Brief 6
1 Government Code §65009 mandated strict compliance with the statute of limitations. Okasaki, 203
2 Cal.App.4th at 1048.
3 It should be noted that Government Code 65009(c)(1)(E) also requires that the petition be
4 personally served within the 90 days filing period. Royalty Carper Mills v. City of Irvin (2005) 125
5 Cal.App.4th 1110. A timely writ was neither filed, nor served within 90 days of March 18, 2019 or even
6 with 90 days of November 26, 2019.
7 IV. PLAINTIFFS WAIVED THE RIGHT TO HAVE A PUBLIC HEARING
8 A. Notice of Waiver Was Served and Received by Plaintiffs.
9 Sonoma County Code Section 26-92-040(d) allows for the County to waive hearing requirements,
10 as discussed in County’s Trial Brief, pages 2 and 4-5. Waiver of due process is definitely permissible, and
11 no case law striking a similar ordinance is presented by Plaintiff. The Schmids made a conscious, reasoned
12 decision not to challenge the project in March and again in November 2019.
13 As noted by the County in the opening session preceding presentation of evidence, a party can
14 waive a notice and hearing requirement. In D. H. Overmyer Co. v. Frick Co., 405 U.S. 174, 188 the United
15 States Supreme Court, in holding that the right to prior notice and hearing had been waived where a
16 contract clause allowed a debtor to consent in advance to the creditor obtaining judgment without a
17 hearing. The petitioner corporation was asserting a 14th amendment deprivation of due process which was
18 denied because petitioner was fully aware of the legal consequences of its waiver. See also Boddie v.
19 Connecticut (1971) 401 U.S. 371, 378-379, the hearing required by due process is subject to waiver.
20 Due process of law does not require actual notice, but only a method reasonably certain to
21 accomplish that end. If the form of substituted service is reasonably calculated to give an interested party
22 actual notice of the proceedings and an opportunity to be heard, the traditional notions of fair play and
23 substantial justice implicit in due process are satisfied. Rasooly v. City of Oakley (2018) 29 Cal. App. 5th
24 348, 357. The First Appellate District also confirmed that combined posting and mailing of a notice was
25 constitutionally sufficient, even though appellant Rasooly did not actually receive the notice.
26 The County complied with section 26-92-040. No complaint about the project was presented to the
27 County before or after the Notice of Waiver; and no request for hearing was made by Plaintiffs. They made
28 no contact with Permit Sonoma until the construction was almost completed in 2020, although they
received the Notice of Waiver of Public Hearing in March 2019.
County’s Closing Brief 7
1 The common law equitable doctrines of waiver and estoppel raised in the County’s Answer
2 certainly apply even if the ordinance’s waiver proceeding does not.
3 B. Notice of Waiver by Mail and Posting is Constitutionally Sufficient
4 One of Plaintiffs favorite cases, Horn v. County of Ventura (1979) 24 Cal. 3d 605 approves the type
5 of notice that the County of Sonoma provided regarding the waiver of the hearing. In that case involving
6 approval of a tentative map no notice was given to adjoining property owners. The Supreme Court held that
7 due process principles required reasonable notice and an opportunity to be heard. It did not set out a
8 specific formula for the notice, but found to be acceptable, techniques such as “notice by mail to the
9 owners of record of property situate within a designated radius of the subject property, or by the posting of
10 notice at or near the project site, or both.” Horn, 24 Cal. 3d at 618. The combination of the mailing the
11 notice of waiver and posting at the property for this case of UPE 18-0068, is proper even by the standards
12 Plaintiffs’ case law sets.
13 The alternative manner of notice of a hearing provided by the County of Sonoma was judicially
14 approved in Hayssen v. Bd. Of Zoning Adjustments (1985) 171 Cal.App.3d 400. Mailing and posting 10
15 days before hearing (not receipt by the neighboring landowner) met the “reasonably calculated to apprise”
16 standard.
17 C. The Court Should Not Set Aside Issuance of Use Permit Based Upon Omission
In Notice of Public Hearing
18
19 Without conceding that a public hearing was required in this situation where Notice of Waiver that
20 was posted, mailed, and received by the Schmids; this omission is hardly prejudicial under all the evidence
21 presented to the Court. The 5400 square foot garage building had proper setbacks under the use permit.
22 The grading and drainage reports and permits were required as conditions under the permit. No separate
23 use permit is required for a parking area adjacent to this garage building.
24 Even if they had requested a public hearing, Plaintiffs undoubtedly would have appealed any ruling
25 by the Board of Zoning Adjustments that approved the use permit. They would have filed the same writ
26 action that is at issue here. Given the lack of evidence presented to this Court to show abuse of discretion
by the Permit Sonoma planners, it is almost certain that the BZA would have approved the use permit.
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This court trial would have followed. Most importantly, Frear Stephen Schmid testified that he is getting
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due process with this Court during the pursuit of this litigation.
County’s Closing Brief 8
1 Government Code §65010(b) specifically states:
2 No action, inaction, or recommendation by any public agency or its legislative body
or any of its administrative agencies or officials on any matter subject to this title shall be
3 held invalid or set aside by any court on the ground of the improper admission or rejection
4 of evidence or by reason of any error, irregularity, informality, neglect, or omission (hereafter,
error) as to any matter pertaining to petitions, applications, notices, findings, records, hearings,
5 reports, recommendations, appeals, or any matters of procedure subject to this title, unless the
court finds that the error was prejudicial and that the party complaining or appealing suffered
6 substantial injury from that error and that a different result would have been probable if the
7 error had not occurred. There shall be no presumption that error is prejudicial or that injury
was done if the error is shown.
8
In Rialto Citizens for Responsible Growth v. City of Rialto (2012) 208 Cal. App. 4th 899, numerous
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faults were found by the Court of Appeals, with the notice, and the absence of certain findings. The city’s
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omissions were harmless errors and there was no prejudicial abuse of discretion in certification of a
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project’s environmental impact report. It is the party seeking to set aside the city’s actions based upon
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defective notice, to demonstrate substantial injury, and the probability of a different result under
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Government Code 65010(b). Plaintiffs have failed to meet this burden.
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V. ANY PRIOR DECISION BY THE COURT TO DENY A MOTION IS NOT
15 BINDING NOW AFTER THE COURT HAS HEARD THE EVIDENCE
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Plaintiff Frear Schmid mentioned the decision of the Honorable Gary Nadler when he denied the
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County’s Motion for Summary Judgment. While Judge Nadler made reasoned decisions, they have no
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bearing on the result in this matter. Plaintiffs continue to contend that this issue has already been decided
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by that summary judgment ruling of the Honorable Gary Nadler. In fact, that ruling is not determinative of
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anything since it was a denial of the County’s motion, not an affirmative judgment. A summary judgment
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motion is only granted when there is no triable issue as to any material fact and that the moving party is
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entitled to a judgment as a matter of law. Code Civ. Pro. §437c(c).
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It is certainly not “law of the case” which only applies in cases where there is an appellate decision
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and the matter is returned to the trial court. The “law of the case” doctrine precludes a party from obtaining
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appellate review of the same issue more than once in a single action. When a reviewing court states in its
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opinion a principle or rule of law necessary to the decision, that principle or rule becomes the law of the
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case and must be adhered to throughout its subsequent progress, both in the lower court and upon
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County’s Closing Brief 9
1 subsequent appeal. Katz v. Los Gatos-Saratoga Joint Union High School Dist (2004) 117 Cal. App. 4th
2 47, 62. Accord AmeriGas Propane, LP. v. Landstar Ranger, Inc. (2014) 230 Cal. App. 4th 1153, 1164.
3 The County could equally say that the decision of the Honorable Trina Thompson of the United
4 States District Court, Northern District California, should be followed since she granted the County’s
5 Motion to Dismiss in part based upon Sonoma County Code 26-92-040(d) and the actual notice of the right
6 to a public hearing that was waived by the Schmids. Judge Thompson found that Plaintiffs were not
7 deprived of due process rights under the Fourteenth Amendment. Schmid v. Cnty. of Sonoma (N.D. CA
8 2023) 2023 U.S. Dist. LEXIS 39985 *4.
9 VI. THIS CASE IS NOT A TAXPAYER SUIT
10 Plaintiffs attempt to argue that this case is viable under Code of Civil Procedure §526a, because
11 they pay taxes. Plaintiffs provide no any explanation what taxes supposedly fund this project. The
12 “taxpayer” must prove that he or she paid a tax that funds whose act is sought to be challenged.
13 Weatherford v. City of San Rafael (2017) 2 Cal. 5th 1241, 1251. The evidence produced by Plaintiffs
14 shows that the planner’s time was charged to the applicant. (Exhibit 1, p. COS 014; Exhibit 133) Plaintiffs
15 failed to prove other key elements of such a claim. There was no evidence of “waste” in the issuance of the
16 use permit. The challenged governmental conduct must be illegal [citation] or must constitute waste, “‘a
17 useless expenditure … of public funds’ that is incapable of achieving the ostensible goal.” [citation]
18 Thompson v. City of Petaluma (2014) 231 Cal. App. 4th 101. “Waste” as used in section 526a means
19 something more than an alleged mistake by public officials in matters involving the exercise of judgment
20 or wide discretion. …’” Sundance v. Municipal Court (1986) 42 Cal.3d 1101, 1138–1139; Lucas v. Santa
21 Maria Public Airport Dist. (1995) 39 Cal App 4th 1017, 1026. “[A] taxpayer may not bring an action on
22 behalf of a public agency unless the governing body has a duty to act, and has refused to do so. If the
23 governing body has discretion in the matter, the taxpayer may not interfere.” Silver v. Watson (1972) 26
24 Cal.App.3d 905, 909
25 Dated: January 24, 2024 ROBERT H. PITTMAN, Sonoma County Counsel
26
By: _Michael A. King__________
27 Michael A. King
Attorneys for County of Sonoma
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County’s Closing Brief 10
1 PROOF OF SERVICE
2 I am and was at the time of service of the herein named documents, employed in the County of
3 Sonoma, California, over the age of 18 years and not a party to the within action. My business address is
575 Administration Dr., Rm. 105A, Santa Rosa, California 95403.
4
On January 24, 2024, I served the following documents:
5
6 COUNTY OF SONOMA CLOSING BRIEF
7 on the parties in this action by placing true copies thereof enclosed in envelopes (if applicable), at Santa
Rosa, addressed as follows:
8
9 Frear Stephen Schmid John Borba
Astrid Schmid Borba Frizzell Kerns, P.C.
10 50 Old Courthouse Sq. Ste.605
7585 Valley Ford Road
Santa Rosa, CA 95404
Petaluma, CA 94952
11 frearschmid@aol.com
john@bfklegal.com
jacqueline@bfklegal.com
12
Plaintiffs, Pro Se
13 Attorneys for Defendant Two Rock
Volunteer Fire Department
14
J. Curtis Edmondson
15 Law Officeds of J. Curtis Edmondson
9999 SW Wilshire Street, #216
16
Portland, OR 97225
17 jcedmondson@edmolaw.com
18 Attorney for Plaintiffs
19
[ ] BY MAIL. I am readily familiar with my employer’s practice of collection and processing
20 correspondence for mailing. Under that practice, I placed each such sealed envelope, with
postage thereon fully prepaid for first-class mail, for collection and mailing at Santa Rosa,
21 California, to the addresses as set forth above, following ordinary business practices. Said
22 practice being that in the ordinary course of business, correspondence is deposited in the
United States Postal Service the same day as it is placed for processing.
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[] BY PERSONAL SERVICE. I caused each such document to be delivered by hand to the
24 address(es) listed above.
25
[] BY FACSIMILE TRANSMISSION. I caused such documents to be transmitted to the
26 facsimile number of the addressee listed above, by use of facsimile machine telephone
number. The facsimile machine complied with California Rules of Court, Rule 2004 and no
27 error was reported by the machine. Pursuant to California Rules of Court, Rule 2006(d), a
28 transmission record of the transmission was printed.
County’s Closing Brief 11
1 [X] BY EMAIL SERVICE. I caused such document(s) to be emailed or electronically transmitted
between the parties and/or as a courtesy, I sent the document(s) to the person(s) at the email
2 address(es) listed above. I did not receive, within a reasonable time after the transmission, any
3 electronic message or other indication that the transmission was unsuccessful
4 [] BY OVERNIGHT DELIVERY SERVICE. I caused such envelope to be delivered by overnight
courier service to the addressee at the address set forth above. The envelope was deposited in or
5 with a facility regularly maintained by the overnight delivery service with delivery fees paid.
6
[X] (State) I declare under penalty of perjury under the laws of the State of California that the foregoing
7 is true and correct.
8 Executed on January 24, 2024, at Santa Rosa, California.
9
_______________________________
10 Megan Sweeley
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County’s Closing Brief 12
Preview
1 ROBERT H. PITTMAN, State Bar No. 172154 County Counsel 2 MICHAEL A. KING, State Bar No. 077014 3 Deputy County Counsel 575 Administration Drive, Room 105A 4 Santa Rosa, California 95403-2815 Telephone: (707) 565-2421 5 Facsimile: (707) 565-2624 6 Attorneys for Defendant 7 COUNTY OF SONOMA 8 SUPERIOR COURT OF THE STATE OF CALIFORNIA 9 FOR THE COUNTY OF SONOMA 10 FREAR STEPHEN SCHMID AND ASTRID Case No.: SCV-266731 consolidated with 11 SCHMID, SCV-266225 and 12 Plaintiffs COUNTY OF SONOMA 13 CLOSING BRIEF v. 14 TRIAL DATE: 1-16-24 15 TIME: 9:00 a.m. COUNTY OF SONOMA, , DEPT: 19 16 Defendant. Complaint filed: 17 7/16/2020 (SCV-266731) 18 19 I. INTRODUCTION 20 A. Issues 21 The Writ of Mandate against the County; SCV-266731, was the subject of the trial before the 22 Honorable Oscar A. Pardo in which evidence was presented from January 16 to 18, 2024. Plaintiffs Frear 23 and Astrid Schmid were primarily represented by Plaintiff in pro per Frear Schmid, with assistance from 24 associate counsel J. Curtis Edmondson and Plaintiff Astrid Schmid. The County was represented by 25 Michael King; Real Party in Interest Two Rock Fire Dept. (“TRFD”) was represented by John Borba. 26 This court trial only involved issues raised in the original action against the County of Sonoma 27 (SCV-266731) pertaining to the issuance of the use permit, which preceded the construction of the Two 28 Rock Fire Department garage and storage building at 7599 Valley Ford Road, Petaluma. At the outset the County’s Closing Brief 1 1 parties discussed the scope of this portion of the case which the Court had bifurcated from the other issues 2 in the consolidated cases at the hearing on December 15, 2023. Judge Pardo generally outlined the issues: 3 1) When and how the County provided notice to Plaintiffs of the application for the use permit and 4 any right to request a hearing; 5 2) Was there a waiver of any public hearing issues raised by Plaintiffs; 6 3) What was the scope of the use permit issued on March 18, 2019; the parameters of the permit. 7 B. Evidence 8 Following the receipt of the Application for Use Permit on September 21, 2018 (Exhibit 1) 1, Permit 9 Sonoma began the lengthy discretionary process of obtaining information to approve or deny the use 10 permit. Information was provided from various sources, including additional reports, drawings, and 11 communications from Erickson Engineering, the applicant’s consultant. (Exhibits 3, 5, 6, 8) A letter was 12 sent to neighbors on about October 2, 2018. (Exhibit 2). In November 2018, Paul Martin from TRFD 13 contacted the Schmids and obtained a waiver of setback requirements for the building. (Exhibit 4) The 14 testimony is clear that setbacks are for structures, not parking areas or concrete pads for water tanks. 15 Lot coverage was calculated by two methodologies. The second methodology resulted in a determination 16 that the garage building would meet requirements since it was replacing existing repair facility and 17 outbuildings. Only as a result of this litigation, well after construction, did a recalculation determine that 18 the figures may be off by 211 sq. feet. Demolition of a single shed or garage next to the residence, would 19 resolve any issue with this miscalculation. 20 Pursuant to Sonoma County Code (“SCC”) 26-92-040(d), notice of the proposed development of 21 the parcel was posted on March 4, 2019, on 4 utility poles at and near the property being developed. The 22 same notice was mailed to neighbors on March 4 or 5, 2019. (Exhibits 9, 10). The Schmids admittedly 23 received the notice on March 6 or 7. (Testimony and Exhibit 5, Request for Admission, Response to Nos. 24 12, 13 and 14) No action was taken to finally approve the use permit until March 18, 2019. (Exhibit 12). 25 Not only is this date more than 10 days after the notice was posted and mailed to the neighbors; it is more 26 than 10 days after receipt of the notice by the Schmids. Plaintiffs took no action in response to this notice. 27 They consciously and knowingly did not request a public hearing, whatever their reason. 28 1 Joint Exhibits are numbered 1-14; Plaintiff Exhibits are numbered 101-151; County Exhibits are numbered 201-214. County’s Closing Brief 2 1 The notice received by the Schmids, clearly described in some detail, the nature of the 2 development. More importantly, under “Additional Information”, it gave specific information about who 3 to contact if there were any questions, concerns, comments, or more information was desired. Mr. Schmid 4 was very familiar with the Permit Sonoma office in Santa Rosa and apparently had its Director on speed 5 dial. The notice also clearly advised the recipient that she or he could easily request a public hearing if the 6 recipient had any concerns about the development. Under “How to Get Involved”, the notice not only 7 advises to contact Ms. Acker, but also identifies the right to appeal any approval within 10 days after the 8 approval date. No one, not even the well-informed Mr. and Mrs. Schmid, contacted the planner, Crystal 9 Acker. No one requested a public hearing clearly mentioned in the Notice of Waiver received by the 10 Schmids and posted at the property. 11 While engaging in the lengthy and detailed process leading to the decision to approve or deny the 12 use permit, Crystal Acker discussed this specific project with her supervisor and with Permit Sonoma 13 Director Tennis Wick who had expressed specific interest in it. After the discretionary administrative 14 process, the Notice of Waiver, and after 4 additional days beyond the 10 day notice period; Ms. Acker 15 proceeded with the issuance of UPE18-0068 for the fire station garage at 7599 Valley Ford Road on March 16 18, 2019. (Exhibit 12). Even after this final administrative decision to issue the permit, there was an 17 additional 10 day appeal period for a request for a public hearing, or to raise concerns about the project. 18 As shown in the Use Permit letter and testified by Ms. Acker, numerous additional conditions 19 needed to be met and additional work was needed from other divisions of Permit Sonoma. Conditions of 20 Approval, Building/Grading Permit Application, Drainage Report Contents and Grading Permit Contents 21 were all included with the letter. (Exhibit 12, bottom p. 3) 22 After construction commenced, Mr. Schmid claims he was surprised to see a parking area next to 23 the building. He was also concerned about the grading and drainage of the lot, so he contacted Paul Martin 24 of Two Rock Fire Dept. (Exhibit 212) In his direct testimony, Plaintiff completely ignored this event in 25 November 2019. He seemed to deny any knowledge of the parking area or grading issues until February 26 25, 2020 when he visited Permit Sonoma and looked at the Permit Sonoma documents. The approval letter 27 for the use permit, and numerous drawings, etc. were all available for review in March 2019, before the 28 expiration of appeal period after the decision. These documents could easily have been sent to the Schmids if they had requested them. County’s Closing Brief 3 1 II. PLAINTIFFS DID NOT SHOW COUNTY ABUSED ITS DISCRETION ISSUING THE USE PERMIT 2 3 As noted in the County’s Trial Brief, pages 8-9, Code of Civil Procedure §1094.5(a) allows an 4 inquiry into the validity of any “final administrative order or decision made as the result of a proceeding in 5 which by law a hearing is required to be given…” “The issuance of a conditional use permit is a quasi- 6 judicial administrative action reviewed under administrative mandamus procedures.” Harrington v. City of 7 Davis (2017) 16 Cal.App.5th 420, 434. “The inquiry in such a case shall extend to the questions whether 8 the respondent has proceeded without, or in excess of, jurisdiction; whether there was a fair trial; and 9 whether there was any prejudicial abuse of discretion.” Code Civ. Proc., § 1094.5 (b). 10 “In making these determinations, the reviewing court must resolve reasonable doubts in favor of the 11 administrative findings and decision.'" Craik v. County of Santa Cruz (2000) 81 Cal.App.4th 880, 884-885. To grant the Schmids’ writ, the Court will need to find that no reasonable planner could have approved the 12 conditional use permit on March 18, 2019. No evidence was presented by Plaintiffs to support that finding. 13 The inquiry in this case stopped at the end of Plaintiffs’ case because they presented no evidence 14 that Permit Sonoma prejudicially abused its discretion. The court presumes that the action is supported by 15 substantial evidence, and Plaintiffs have the burden to demonstrate otherwise. (McAllister v. California 16 Coastal Com. (2008) 169 Cal.App.4th 912, 921-922; Saad v. City of Berkeley (1994) 24 Cal.App.4th 1206, 17 1212. Permit Sonoma proceeded in a manner allowed by the Sonoma County Code, the decision to approve 18 the use permit was supported by detailed findings, and these findings are supported by the documentary 19 evidence, as well as the informed testimony of Crystal Acker. 20 While the interpretation of a statute is ultimately a question of law, a court must also defer to an 21 administrative agency's interpretation of a statute involving its area of expertise, unless the interpretation 22 flies in the face of the clear language and purpose of the interpreted provision. Communities for a Better 23 Environment v. State Water Resources Control Bd. (2003) 109 Cal.App.4th 1089, 1104. “A court must 24 extend considerable deference to an administrative agency's interpretation of its own regulations or the 25 regulatory scheme that the agency implements or enforces. The agency interpretation is entitled to great 26 weight unless unauthorized or clearly erroneous…” Ibid. at 1107. See also Reddell v. California Coastal 27 Com. (2009) 180 Cal. App. 4th 956, in which the Court of Appeal affirmed the denial of a coastal 28 development permit. The reviewing court exercises its independent judgment in reviewing the agency’s County’s Closing Brief 4 1 interpretation of the statute and policies, but it gives deference to the determination of the agency 2 appropriate to the circumstances of the agency action. Reddell, 180 Cal.App.4th at 965. 3 III. THIS ACTION IS TIME-BARRED 4 A. Plaintiffs Did Not File or Serve this Writ Complaint Within 90 Days of the Decision 5 As discussed in detail in the County’s Trial Brief, pages 10-12, Government Code §65009(c)(1)(E) 6 required Plaintiffs to bring this writ action within 90 days after the issuance of the permit “to attack, 7 review, set aside, void, or annul any decision on the matters listed in Sections 65901 and 65903, or to 8 determine the reasonableness, legality, or validity of any condition attached to a variance, conditional use 9 permit, or any other permit.” Upon the expiration of the time limits provided for in this section, all persons 10 are barred from any further action or proceeding. Govt. Code, § 65009(e). 11 Even where no public hearing was held, the Court in 1305 Ingraham, LLC v. City of Los Angeles 12 (2019) 32 Cal. App. 5th 1253 held that the 90-day limitations period of section 65009 applied to a City's 13 project permit compliance review – the “decision.” Application of § 65009(c)(1), is not limited to 14 decisions of a legislative body but rather is determined by the underlying decision being reviewed. 1305 15 Ingraham, LLC 32 Cal. App. 5th at 1264-1265. 16 The Schmids are claiming they did not recognize that the development of a 5400 sq. foot building 17 that would house fire engines and equipment, would include parking for responding firefighters who leave 18 on those trucks wearing that equipment. Even assuming that the Schmids were somehow duped by the 19 Notice of Waiver, or they did not have an obligation to inquire further from Permit Sonoma or simply 20 request a public hearing; by November 26, 2019, they had actual notice of the parking area including their 21 misunderstanding of setbacks, as well as drainage and grading issues. (Exhibit 212). 22 Even if the statute of limitations did not start before November 26, 2019, the 90 days to file any 23 writ action, certainly expired on or about February 25, 2020, the day that Frear Stephen Schmidt visited the 24 Permit Sonoma office and viewed the file. The action was not filed any time before the Courts closed in 25 March 2020, nor even with the action against TRFD on April 15, 2020, Case No. SCV-266225. 26 As noted in the County’s Trial Brief, Govt. Code Sections 65901 and 65903 “provide for hearing 27 and decision on, ….applications for variances, conditional use permits, and other permits.” Travis v. 28 County of Santa Cruz (2004) 33 Cal.4th 757, 766, fn. 2. Section 65009, subdivision (c)(1)(E) is to be applied broadly to all types of challenges to permits and permit conditions, as long as the challenge rests on County’s Closing Brief 5 1 a “decision” of a local authority relating to a permit or seeks to “determine the reasonableness, legality, or 2 validity of any condition ... .” (Travis, supra, at pp. 766-768.) See also Save Lafayette Trees v. City of 3 Lafayette (2019) 32 Cal.App.5th 148, 155–156; Honig v. San Francisco Planning Dept. (2005) 127 Cal. 4 App. 4th 520, cited in the County’s Trial Brief. In Honig v. San Francisco Planning Dept. (2005) 127 Cal. 5 App. 4th 520, Government Code § 65009 applied to a writ petition challenging issuance of a building 6 permit issued in conjunction with a zoning variance since the gravamen of the writ petition was that the 7 variance was improperly granted. The Honig court also rejected the neighbor's argument that the board 8 should be estopped from asserting the statute of limitations. 9 In Hawkins v. County of Marin (1976) 54 Cal. App. 3d 586, neighboring homeowners were not 10 allowed to challenge a use permit where the action was filed after the 180 day statute of limitations (in 11 effect under former Government Code §65907 at the time and repealed in 1996). 12 B. The 90 Day Limitation Period in the Government Code applies. 13 Plaintiffs suggest in their Trial Brief that they can somehow rely upon Code of Civil Procedure 14 §1094.6 to justify the delay. Section 1094.6 also requires that the writ petition must be filed within 90 days 15 after the challenged decision becomes final. That would still be about June 17, 2019 (90 days after March 16 18, 2019). It would only be extended if within 10 days after the decision became final (March 18, 2019), a 17 written request for preparation of the administrative record is filed. Code Civ. Pro. §1094.6(d). No written 18 request for an administrative record was made even after the November 26, 2019, observations and e-mails 19 between Mr. Schmid and Paul Martin. The Schmids were certainly not relying upon any representation or 20 statement by the County in letting the time run, a time limit with which Mr. Schmid was very familiar. 21 Furthermore, C.C.P §1094.6, only applies generally to challenges to local agency decisions 22 concerning such subjects as the revocation of permits and licenses, adverse employment decisions, and the 23 imposition of administrative penalties, not this challenge. In Okasaki v. City of Elk Grove (2012) 203 Cal. 24 App. 4th 1043, 1049, the Court followed the settled rules of statutory construction that the specific statute 25 controls over the more general statute, and applied Government Code §65009 instead of Code of Civil 26 Procedure §1094.6. The Court of Appeal affirmed the demurrer to the writ challenge to a variance by 27 adjoining owners that was filed more than 90 days after the city council had approved the variance. 28 Appellants had even requested the city prepare an administrative record, but did not file the writ action. County’s Closing Brief 6 1 Government Code §65009 mandated strict compliance with the statute of limitations. Okasaki, 203 2 Cal.App.4th at 1048. 3 It should be noted that Government Code 65009(c)(1)(E) also requires that the petition be 4 personally served within the 90 days filing period. Royalty Carper Mills v. City of Irvin (2005) 125 5 Cal.App.4th 1110. A timely writ was neither filed, nor served within 90 days of March 18, 2019 or even 6 with 90 days of November 26, 2019. 7 IV. PLAINTIFFS WAIVED THE RIGHT TO HAVE A PUBLIC HEARING 8 A. Notice of Waiver Was Served and Received by Plaintiffs. 9 Sonoma County Code Section 26-92-040(d) allows for the County to waive hearing requirements, 10 as discussed in County’s Trial Brief, pages 2 and 4-5. Waiver of due process is definitely permissible, and 11 no case law striking a similar ordinance is presented by Plaintiff. The Schmids made a conscious, reasoned 12 decision not to challenge the project in March and again in November 2019. 13 As noted by the County in the opening session preceding presentation of evidence, a party can 14 waive a notice and hearing requirement. In D. H. Overmyer Co. v. Frick Co., 405 U.S. 174, 188 the United 15 States Supreme Court, in holding that the right to prior notice and hearing had been waived where a 16 contract clause allowed a debtor to consent in advance to the creditor obtaining judgment without a 17 hearing. The petitioner corporation was asserting a 14th amendment deprivation of due process which was 18 denied because petitioner was fully aware of the legal consequences of its waiver. See also Boddie v. 19 Connecticut (1971) 401 U.S. 371, 378-379, the hearing required by due process is subject to waiver. 20 Due process of law does not require actual notice, but only a method reasonably certain to 21 accomplish that end. If the form of substituted service is reasonably calculated to give an interested party 22 actual notice of the proceedings and an opportunity to be heard, the traditional notions of fair play and 23 substantial justice implicit in due process are satisfied. Rasooly v. City of Oakley (2018) 29 Cal. App. 5th 24 348, 357. The First Appellate District also confirmed that combined posting and mailing of a notice was 25 constitutionally sufficient, even though appellant Rasooly did not actually receive the notice. 26 The County complied with section 26-92-040. No complaint about the project was presented to the 27 County before or after the Notice of Waiver; and no request for hearing was made by Plaintiffs. They made 28 no contact with Permit Sonoma until the construction was almost completed in 2020, although they received the Notice of Waiver of Public Hearing in March 2019. County’s Closing Brief 7 1 The common law equitable doctrines of waiver and estoppel raised in the County’s Answer 2 certainly apply even if the ordinance’s waiver proceeding does not. 3 B. Notice of Waiver by Mail and Posting is Constitutionally Sufficient 4 One of Plaintiffs favorite cases, Horn v. County of Ventura (1979) 24 Cal. 3d 605 approves the type 5 of notice that the County of Sonoma provided regarding the waiver of the hearing. In that case involving 6 approval of a tentative map no notice was given to adjoining property owners. The Supreme Court held that 7 due process principles required reasonable notice and an opportunity to be heard. It did not set out a 8 specific formula for the notice, but found to be acceptable, techniques such as “notice by mail to the 9 owners of record of property situate within a designated radius of the subject property, or by the posting of 10 notice at or near the project site, or both.” Horn, 24 Cal. 3d at 618. The combination of the mailing the 11 notice of waiver and posting at the property for this case of UPE 18-0068, is proper even by the standards 12 Plaintiffs’ case law sets. 13 The alternative manner of notice of a hearing provided by the County of Sonoma was judicially 14 approved in Hayssen v. Bd. Of Zoning Adjustments (1985) 171 Cal.App.3d 400. Mailing and posting 10 15 days before hearing (not receipt by the neighboring landowner) met the “reasonably calculated to apprise” 16 standard. 17 C. The Court Should Not Set Aside Issuance of Use Permit Based Upon Omission In Notice of Public Hearing 18 19 Without conceding that a public hearing was required in this situation where Notice of Waiver that 20 was posted, mailed, and received by the Schmids; this omission is hardly prejudicial under all the evidence 21 presented to the Court. The 5400 square foot garage building had proper setbacks under the use permit. 22 The grading and drainage reports and permits were required as conditions under the permit. No separate 23 use permit is required for a parking area adjacent to this garage building. 24 Even if they had requested a public hearing, Plaintiffs undoubtedly would have appealed any ruling 25 by the Board of Zoning Adjustments that approved the use permit. They would have filed the same writ 26 action that is at issue here. Given the lack of evidence presented to this Court to show abuse of discretion by the Permit Sonoma planners, it is almost certain that the BZA would have approved the use permit. 27 This court trial would have followed. Most importantly, Frear Stephen Schmid testified that he is getting 28 due process with this Court during the pursuit of this litigation. County’s Closing Brief 8 1 Government Code §65010(b) specifically states: 2 No action, inaction, or recommendation by any public agency or its legislative body or any of its administrative agencies or officials on any matter subject to this title shall be 3 held invalid or set aside by any court on the ground of the improper admission or rejection 4 of evidence or by reason of any error, irregularity, informality, neglect, or omission (hereafter, error) as to any matter pertaining to petitions, applications, notices, findings, records, hearings, 5 reports, recommendations, appeals, or any matters of procedure subject to this title, unless the court finds that the error was prejudicial and that the party complaining or appealing suffered 6 substantial injury from that error and that a different result would have been probable if the 7 error had not occurred. There shall be no presumption that error is prejudicial or that injury was done if the error is shown. 8 In Rialto Citizens for Responsible Growth v. City of Rialto (2012) 208 Cal. App. 4th 899, numerous 9 faults were found by the Court of Appeals, with the notice, and the absence of certain findings. The city’s 10 omissions were harmless errors and there was no prejudicial abuse of discretion in certification of a 11 project’s environmental impact report. It is the party seeking to set aside the city’s actions based upon 12 defective notice, to demonstrate substantial injury, and the probability of a different result under 13 Government Code 65010(b). Plaintiffs have failed to meet this burden. 14 V. ANY PRIOR DECISION BY THE COURT TO DENY A MOTION IS NOT 15 BINDING NOW AFTER THE COURT HAS HEARD THE EVIDENCE 16 Plaintiff Frear Schmid mentioned the decision of the Honorable Gary Nadler when he denied the 17 County’s Motion for Summary Judgment. While Judge Nadler made reasoned decisions, they have no 18 bearing on the result in this matter. Plaintiffs continue to contend that this issue has already been decided 19 by that summary judgment ruling of the Honorable Gary Nadler. In fact, that ruling is not determinative of 20 anything since it was a denial of the County’s motion, not an affirmative judgment. A summary judgment 21 motion is only granted when there is no triable issue as to any material fact and that the moving party is 22 entitled to a judgment as a matter of law. Code Civ. Pro. §437c(c). 23 It is certainly not “law of the case” which only applies in cases where there is an appellate decision 24 and the matter is returned to the trial court. The “law of the case” doctrine precludes a party from obtaining 25 appellate review of the same issue more than once in a single action. When a reviewing court states in its 26 opinion a principle or rule of law necessary to the decision, that principle or rule becomes the law of the 27 case and must be adhered to throughout its subsequent progress, both in the lower court and upon 28 County’s Closing Brief 9 1 subsequent appeal. Katz v. Los Gatos-Saratoga Joint Union High School Dist (2004) 117 Cal. App. 4th 2 47, 62. Accord AmeriGas Propane, LP. v. Landstar Ranger, Inc. (2014) 230 Cal. App. 4th 1153, 1164. 3 The County could equally say that the decision of the Honorable Trina Thompson of the United 4 States District Court, Northern District California, should be followed since she granted the County’s 5 Motion to Dismiss in part based upon Sonoma County Code 26-92-040(d) and the actual notice of the right 6 to a public hearing that was waived by the Schmids. Judge Thompson found that Plaintiffs were not 7 deprived of due process rights under the Fourteenth Amendment. Schmid v. Cnty. of Sonoma (N.D. CA 8 2023) 2023 U.S. Dist. LEXIS 39985 *4. 9 VI. THIS CASE IS NOT A TAXPAYER SUIT 10 Plaintiffs attempt to argue that this case is viable under Code of Civil Procedure §526a, because 11 they pay taxes. Plaintiffs provide no any explanation what taxes supposedly fund this project. The 12 “taxpayer” must prove that he or she paid a tax that funds whose act is sought to be challenged. 13 Weatherford v. City of San Rafael (2017) 2 Cal. 5th 1241, 1251. The evidence produced by Plaintiffs 14 shows that the planner’s time was charged to the applicant. (Exhibit 1, p. COS 014; Exhibit 133) Plaintiffs 15 failed to prove other key elements of such a claim. There was no evidence of “waste” in the issuance of the 16 use permit. The challenged governmental conduct must be illegal [citation] or must constitute waste, “‘a 17 useless expenditure … of public funds’ that is incapable of achieving the ostensible goal.” [citation] 18 Thompson v. City of Petaluma (2014) 231 Cal. App. 4th 101. “Waste” as used in section 526a means 19 something more than an alleged mistake by public officials in matters involving the exercise of judgment 20 or wide discretion. …’” Sundance v. Municipal Court (1986) 42 Cal.3d 1101, 1138–1139; Lucas v. Santa 21 Maria Public Airport Dist. (1995) 39 Cal App 4th 1017, 1026. “[A] taxpayer may not bring an action on 22 behalf of a public agency unless the governing body has a duty to act, and has refused to do so. If the 23 governing body has discretion in the matter, the taxpayer may not interfere.” Silver v. Watson (1972) 26 24 Cal.App.3d 905, 909 25 Dated: January 24, 2024 ROBERT H. PITTMAN, Sonoma County Counsel 26 By: _Michael A. King__________ 27 Michael A. King Attorneys for County of Sonoma 28 County’s Closing Brief 10 1 PROOF OF SERVICE 2 I am and was at the time of service of the herein named documents, employed in the County of 3 Sonoma, California, over the age of 18 years and not a party to the within action. My business address is 575 Administration Dr., Rm. 105A, Santa Rosa, California 95403. 4 On January 24, 2024, I served the following documents: 5 6 COUNTY OF SONOMA CLOSING BRIEF 7 on the parties in this action by placing true copies thereof enclosed in envelopes (if applicable), at Santa Rosa, addressed as follows: 8 9 Frear Stephen Schmid John Borba Astrid Schmid Borba Frizzell Kerns, P.C. 10 50 Old Courthouse Sq. Ste.605 7585 Valley Ford Road Santa Rosa, CA 95404 Petaluma, CA 94952 11 frearschmid@aol.com john@bfklegal.com jacqueline@bfklegal.com 12 Plaintiffs, Pro Se 13 Attorneys for Defendant Two Rock Volunteer Fire Department 14 J. Curtis Edmondson 15 Law Officeds of J. Curtis Edmondson 9999 SW Wilshire Street, #216 16 Portland, OR 97225 17 jcedmondson@edmolaw.com 18 Attorney for Plaintiffs 19 [ ] BY MAIL. I am readily familiar with my employer’s practice of collection and processing 20 correspondence for mailing. Under that practice, I placed each such sealed envelope, with postage thereon fully prepaid for first-class mail, for collection and mailing at Santa Rosa, 21 California, to the addresses as set forth above, following ordinary business practices. Said 22 practice being that in the ordinary course of business, correspondence is deposited in the United States Postal Service the same day as it is placed for processing. 23 [] BY PERSONAL SERVICE. I caused each such document to be delivered by hand to the 24 address(es) listed above. 25 [] BY FACSIMILE TRANSMISSION. I caused such documents to be transmitted to the 26 facsimile number of the addressee listed above, by use of facsimile machine telephone number. The facsimile machine complied with California Rules of Court, Rule 2004 and no 27 error was reported by the machine. Pursuant to California Rules of Court, Rule 2006(d), a 28 transmission record of the transmission was printed. County’s Closing Brief 11 1 [X] BY EMAIL SERVICE. I caused such document(s) to be emailed or electronically transmitted between the parties and/or as a courtesy, I sent the document(s) to the person(s) at the email 2 address(es) listed above. I did not receive, within a reasonable time after the transmission, any 3 electronic message or other indication that the transmission was unsuccessful 4 [] BY OVERNIGHT DELIVERY SERVICE. I caused such envelope to be delivered by overnight courier service to the addressee at the address set forth above. The envelope was deposited in or 5 with a facility regularly maintained by the overnight delivery service with delivery fees paid. 6 [X] (State) I declare under penalty of perjury under the laws of the State of California that the foregoing 7 is true and correct. 8 Executed on January 24, 2024, at Santa Rosa, California. 9 _______________________________ 10 Megan Sweeley 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 County’s Closing Brief 12