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FREAR STEPHEN SCHMID, CSB # 96089
1
Attorney at Law
2 7585 Valley Ford Road
Petaluma, CA 94952
3 TELEPHONE: (415) 788-5957
Email: frearschmid@aol.com
4
Attorney for plaintiffs
5 FREAR STEPHEN SCHMID AND
ASTRID SCHMID
6
7
8
SUPERIOR COURT OF CALIFORNIA
9
COUNTY OF SONOMA
10
11 [UNLIMITED JURISDICTION]
12
FREAR STEPHEN SCHMID AND Case No.: SCV-266225
13 ASTRID SCHMID
14 PLAINTIFFS’ MEMORANDUM OF
Plaintiffs, POINTS AND AUTHORITIES RE
15 JURISDICTION TO MODIFICATION OF
vs. PRELIMINARY INJUNCTION
16
TWO ROCK VOLUNTEER FIRE COURTROOM:19, JUDGE NADLER
17
DEPARTMENT
18
Defendant.
19
20
FREAR STEPHEN SCHMID AND Case No.: SCV-266731
21
ASTRID SCHMID,
22
Plaintiffs,
23
vs.
24
COUNTY OF SONOMA by and
25
through its PERMIT AND RESOURCE
26 MANAGEMENT DEPARTMENT
27 Defendant
28
PLAINTIFFS’ MEMORANDUM RE JURISDICTION TO MODIFY PRELIMINARY
INJUNCTION
1
TWO ROCK VOLUNTEER FIRE
1
DEPARTMENT a.k.a. TWO ROCK
2 FIRE DEPARTMENT,
Real Party in Interest
3
4
5
6 AS A MATTER OF LAW THE COURT MAY NOT MODIFY THE PRELIMINARY
7 INJUNCTION TO ALLOW THE RESUMPTION OF CRIMINAL CONDUCT
8
9 By abandoning its appeal of the Court’s preliminary injunction, TRFD has de facto
10 conceded the correctness of the preliminary injunction. By the abandonment, TRFD has restored
11 jurisdiction back in this Court, to the extent that the appeal had divested it of jurisdiction. CRC
12 8.244(b)(1). Thus, subject to CCP § 533, the Court now has authority to modify the injunction,
13 i.e there must be a showing of a material change of facts-there are none, a showing of a change
14 of law- there is none or the ends of justice would served- there is no such interest. But even if a
15 modification were otherwise appropriate, as a matter of law, it is an abuse of discretion to modify
16 an injunction that allows for the enjoined party to “resume and continue conduct that was properly
17 enjoined by the preliminary injunction and remains criminally proscribed.” People ex rel.
18 Lungren v. Peron (1997) 59 Cal.App.4th 1383, 1386. Thus, here, any modification allowing for
19 the installation of the propane tank, which TRFD voluntarily removed, would be an abuse of
20 discretion by allowing TRFD to resume an illegal act. Likewise, any modification that would
21 allow the storage building to be heated, also an illegal act, would be an abuse of discretion
22 CCP § 533 provides
23 In any action, the court may on notice modify or dissolve an
injunction or temporary restraining order upon a showing that there
24
has been a material change in the facts upon which the injunction or
25 temporary restraining order was granted, that the law upon which
the injunction or temporary restraining order was granted has
26 changed, or that the ends of justice would be served by the
modification or dissolution of the injunction or temporary
27
restraining order.
28
PLAINTIFFS’ MEMORANDUM RE JURISDICTION TO MODIFY PRELIMINARY
INJUNCTION
2
1 Thus, a superior court may only modify an injunction if it finds a material change in the
2 facts or the law has changed or the ends of justice would be served. Here, on October 15, 2021,
3 at the hearing denying TRFD’s motion for reconsideration, the Court sua sponte raised the
4 potential of modifying the preliminary injunction’s heating prohibition. Applying CCP § 533
5 here, there has clearly been no showing of any material change of facts (much less any showing
6 thereof), nor has there been any change of law. There is also no evidence that the ends of justice
7 would not be served by any modification. See plaintiff’s Points and Authorities in Opposition to
8 Modification of Preliminary Injunction and the declaration in support thereof, filed November
9 18,2021.
10 But, again, most importantly, under People ex rel. Lungren v. Peron (1997) 59 Cal.App.4th
11 1383, 1386, the Court has no discretion to allow TRFD to “resume and continue conduct that was
12 properly enjoined by the preliminary injunction and remains criminally proscribed.” The only
13 issue before the Court is a modification of the preliminary injunction to allow the resumption of
14 the use of the illegal propane heater that the Court ordered disabled in the Preliminary Injunction
15 Order
16 Any modification of the injunction that would enable the resumed operation of the heater
17 would be to “resume and continue conduct that was properly enjoined by the preliminary
18 injunction and remains criminally proscribed.” This Court has determined the use permit does not
19 allow a heated building. See Preliminary Injunction p.8:25-28 TRFD has known from the very
20 beginning that its storage building was not to be heated. The use permit unequivocally states the
21 building is to be an “unconditioned metal building.” A violation of the use permit is a
22 misdemeanor. County Code § 26-92-150 provides: “It is unlawful, prohibited and a violation of
23 this chapter to violate any term or condition of any permit or approval granted or issued pursuant
24 to this chapter.” County Code § 26-92-260 makes violations of the code a misdemeanor. Any
25 modification would also result in violation of County Code § 26-92-200.
26 The issue of heating was addressed repeatedly during the use permit application process.
27 TRFD stated: “The project building will not be heated.” See Schmid declaration filed 5/7/21, Ex.
28 4, p. 6. TRFD assured PRMD that the building would not be heated. despite its knowledge of a
PLAINTIFFS’ MEMORANDUM RE JURISDICTION TO MODIFY PRELIMINARY
INJUNCTION
3
1 potential moisture issue. See Schmid declaration filed 11/18/2021, para.4. Accordingly, the use
2 permit expressly provides the building would be unheated (“unconditioned”). TRFD did not
3 appeal the use permit’s requirement that the building be unconditioned. The alleged need for heat
4 is completely of TRFD’s own making. One cannot repeatedly deny wanting a heater on one hand
5 in order to procure the issuance of the use permit , and then sneak one into the building on the
6 other hand.
7 The only safety issue before the Court is that if the heater had been part of the project, it
8 would have required fire safety scrutiny and general code compliance issues. The propane heater,
9 if reactivated, would be operated without the required fire suppression in the building.
10 Unquestionably the County Code requires the building to have sprinklers, but the building has
11 none. This despite TRFD’s application stating :“The building will have sprinklers.” Schmid
12 dec. filed 5/7/21,Ex. 4, p. 7. This also despite the fact that County Code 13-17(b) (65). expressly
13 requires sprinklers. See plaintiff’s Points and Authorities in Opposition to Modification of
14 Preliminary Injunction, filed November 18,2021, p.3:21-28
15 The Court should not and cannot legally authorize a use of propane heater in a building
16 which clearly violates a very basic fire safety code requirement. It is this very fire danger that
17 plaintiffs raised at the hearing on October 15, 2021. It is unacceptable to think the mere
18 speculative assertion, unproven and unverified, that heating is needed to protect inanimate
19 objects from moisture or freezing can even conceivably outweigh the health, safety and welfare
20 of humans and their animals, of the neighboring homes and of the safe passage of vehicles on
21 Valley Ford Road, given an exceedingly high likelihood the propane tank would explode from
22 the heat generated from a building fire. There was already a major fire in the parking lot that came
23 within feet of the then extant propane tank. Schmid, dec dated 11/11/2021, para. 6.
24 Aside from being illegal and dangerous, the resumed use of the heater simply ignores a very
25 safe option that requires no heater. the use of desiccants. Further options include placing a
26 dehumidifier or fan to cause air circulation.
27 The propane heater presents numerous other misdemeanor code violations: 1) it requires the
28 outdoor storage of propane in tank, when TRFD stated there would be no outdoor storage and
PLAINTIFFS’ MEMORANDUM RE JURISDICTION TO MODIFY PRELIMINARY
INJUNCTION
4
1 the use permit disallows such, 2) the tank, if reinstalled, would be within the area designated for
2 parking, making it subject to being hit by wayward vehicles, 3) several feet of the tank, if
3 reinstalled, would be situated within twenty feet of plaintiffs’ property line in violation of the 20’
4 set back requirement, and 4) it would would be illegally situated within less than 10 feet of
5 flammable vegetation, plastic, and wood. Such violations of the code as noted above are
6 misdemeanors, Thus, the installation of the propane tank would “resume continue conduct that
7 was properly enjoined by the preliminary injunction and remains criminally proscribed.”
8 Accordingly, as a matter of law the Court, under Lungren, supra, cannot modify the preliminary
9 injunction to allow its installation.
10 CONCLUSION
11 No change of facts, no change in law nor any ends of justice have been presented to
12 modify the preliminary injunction. But even if a modification were otherwise appropriate, as a
13 matter of law, it is an abuse of discretion to modify an injunction that allows for TRFD to “resume
14 and continue conduct that was properly enjoined by the preliminary injunction and remains
15 criminally proscribed.” People ex rel. Lungren v. Peron (1997) 59 Cal.App.4th 1383, 1386. TRFD
16 voluntarily removed the propane tank. Its reinstallation would require TRFD to commit multiple
17 misdemeanors. Likewise, the reactivation of the propane heater would constitute multiple
18 misdemeanors. Thus, any modification of the injunction allowing reactivation of the heater or
19 reinstallation of the propane tank may not be allowed as a matter of law.
20
Dated: February 20, 2022 Respectfully submitted,
21
22
23 Frear Stephen Schmid
Attorney for plaintiffs
24
25
26
27
28
PLAINTIFFS’ MEMORANDUM RE JURISDICTION TO MODIFY PRELIMINARY
INJUNCTION
5
1 RE: Schmid v. TRVD
Superior Court of California, County of Sonoma
2 Case No. SCV-266225
3
PROOF OF SERVICE
4
I, SUZANNE SADOWSKI, declare as follows:
5
I am a citizen of the United States, over the age of eighteen years and not a party to the
6
above-entitled action. My business address is at 9 Willowbrook Ct, Petaluma, CA 94954.
7
On February 20, 2022, I caused the following document(s) to be served:
8
PLAINTIFFS’ MEMORANDUM OF POINTS AND AUTHORITIES RE
9
JURISDICTION TO MODIFICATION OF PRELIMINARY INJUNCTION
10
on the following persons as specified:
11
Brian M. Sanders, Esq. Michael A. King, Deputy County
12 Erickson Arbuthnot Counsel 575 Administration Drive, Room
2300 Clayton Rd., Ste. 350 105-A Santa Rosa, CA 95403
13 Concord, CA 94520 michael.king@sonoma-county.org
14
bsanders@ericksenarbuthnot.com
Attorney for County of Sonoma
15 William L. Adams
Johnston Thomas, Attorneys at Law, PC.
16 1400 N. Dutton Ave., #21
17
Santa Rosa, CA 95403
wadams@johnstonthomas.com
18
Attorneys for TRVD
19
20
/X/ By E-Mail - By transmitting an electronic copy of the above document(s) to the
21 following email address(es) set forth below:
22
I declare under penalty of perjury pursuant to the laws of the State of California that the
23 foregoing is true and correct.
24 Executed February 20, 2022 at Austin, Texas.
25
26
SUZANNE SADOWSKI
27
28
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FREAR STEPHEN SCHMID, CSB # 96089 1 Attorney at Law 2 7585 Valley Ford Road Petaluma, CA 94952 3 TELEPHONE: (415) 788-5957 Email: frearschmid@aol.com 4 Attorney for plaintiffs 5 FREAR STEPHEN SCHMID AND ASTRID SCHMID 6 7 8 SUPERIOR COURT OF CALIFORNIA 9 COUNTY OF SONOMA 10 11 [UNLIMITED JURISDICTION] 12 FREAR STEPHEN SCHMID AND Case No.: SCV-266225 13 ASTRID SCHMID 14 PLAINTIFFS’ MEMORANDUM OF Plaintiffs, POINTS AND AUTHORITIES RE 15 JURISDICTION TO MODIFICATION OF vs. PRELIMINARY INJUNCTION 16 TWO ROCK VOLUNTEER FIRE COURTROOM:19, JUDGE NADLER 17 DEPARTMENT 18 Defendant. 19 20 FREAR STEPHEN SCHMID AND Case No.: SCV-266731 21 ASTRID SCHMID, 22 Plaintiffs, 23 vs. 24 COUNTY OF SONOMA by and 25 through its PERMIT AND RESOURCE 26 MANAGEMENT DEPARTMENT 27 Defendant 28 PLAINTIFFS’ MEMORANDUM RE JURISDICTION TO MODIFY PRELIMINARY INJUNCTION 1 TWO ROCK VOLUNTEER FIRE 1 DEPARTMENT a.k.a. TWO ROCK 2 FIRE DEPARTMENT, Real Party in Interest 3 4 5 6 AS A MATTER OF LAW THE COURT MAY NOT MODIFY THE PRELIMINARY 7 INJUNCTION TO ALLOW THE RESUMPTION OF CRIMINAL CONDUCT 8 9 By abandoning its appeal of the Court’s preliminary injunction, TRFD has de facto 10 conceded the correctness of the preliminary injunction. By the abandonment, TRFD has restored 11 jurisdiction back in this Court, to the extent that the appeal had divested it of jurisdiction. CRC 12 8.244(b)(1). Thus, subject to CCP § 533, the Court now has authority to modify the injunction, 13 i.e there must be a showing of a material change of facts-there are none, a showing of a change 14 of law- there is none or the ends of justice would served- there is no such interest. But even if a 15 modification were otherwise appropriate, as a matter of law, it is an abuse of discretion to modify 16 an injunction that allows for the enjoined party to “resume and continue conduct that was properly 17 enjoined by the preliminary injunction and remains criminally proscribed.” People ex rel. 18 Lungren v. Peron (1997) 59 Cal.App.4th 1383, 1386. Thus, here, any modification allowing for 19 the installation of the propane tank, which TRFD voluntarily removed, would be an abuse of 20 discretion by allowing TRFD to resume an illegal act. Likewise, any modification that would 21 allow the storage building to be heated, also an illegal act, would be an abuse of discretion 22 CCP § 533 provides 23 In any action, the court may on notice modify or dissolve an injunction or temporary restraining order upon a showing that there 24 has been a material change in the facts upon which the injunction or 25 temporary restraining order was granted, that the law upon which the injunction or temporary restraining order was granted has 26 changed, or that the ends of justice would be served by the modification or dissolution of the injunction or temporary 27 restraining order. 28 PLAINTIFFS’ MEMORANDUM RE JURISDICTION TO MODIFY PRELIMINARY INJUNCTION 2 1 Thus, a superior court may only modify an injunction if it finds a material change in the 2 facts or the law has changed or the ends of justice would be served. Here, on October 15, 2021, 3 at the hearing denying TRFD’s motion for reconsideration, the Court sua sponte raised the 4 potential of modifying the preliminary injunction’s heating prohibition. Applying CCP § 533 5 here, there has clearly been no showing of any material change of facts (much less any showing 6 thereof), nor has there been any change of law. There is also no evidence that the ends of justice 7 would not be served by any modification. See plaintiff’s Points and Authorities in Opposition to 8 Modification of Preliminary Injunction and the declaration in support thereof, filed November 9 18,2021. 10 But, again, most importantly, under People ex rel. Lungren v. Peron (1997) 59 Cal.App.4th 11 1383, 1386, the Court has no discretion to allow TRFD to “resume and continue conduct that was 12 properly enjoined by the preliminary injunction and remains criminally proscribed.” The only 13 issue before the Court is a modification of the preliminary injunction to allow the resumption of 14 the use of the illegal propane heater that the Court ordered disabled in the Preliminary Injunction 15 Order 16 Any modification of the injunction that would enable the resumed operation of the heater 17 would be to “resume and continue conduct that was properly enjoined by the preliminary 18 injunction and remains criminally proscribed.” This Court has determined the use permit does not 19 allow a heated building. See Preliminary Injunction p.8:25-28 TRFD has known from the very 20 beginning that its storage building was not to be heated. The use permit unequivocally states the 21 building is to be an “unconditioned metal building.” A violation of the use permit is a 22 misdemeanor. County Code § 26-92-150 provides: “It is unlawful, prohibited and a violation of 23 this chapter to violate any term or condition of any permit or approval granted or issued pursuant 24 to this chapter.” County Code § 26-92-260 makes violations of the code a misdemeanor. Any 25 modification would also result in violation of County Code § 26-92-200. 26 The issue of heating was addressed repeatedly during the use permit application process. 27 TRFD stated: “The project building will not be heated.” See Schmid declaration filed 5/7/21, Ex. 28 4, p. 6. TRFD assured PRMD that the building would not be heated. despite its knowledge of a PLAINTIFFS’ MEMORANDUM RE JURISDICTION TO MODIFY PRELIMINARY INJUNCTION 3 1 potential moisture issue. See Schmid declaration filed 11/18/2021, para.4. Accordingly, the use 2 permit expressly provides the building would be unheated (“unconditioned”). TRFD did not 3 appeal the use permit’s requirement that the building be unconditioned. The alleged need for heat 4 is completely of TRFD’s own making. One cannot repeatedly deny wanting a heater on one hand 5 in order to procure the issuance of the use permit , and then sneak one into the building on the 6 other hand. 7 The only safety issue before the Court is that if the heater had been part of the project, it 8 would have required fire safety scrutiny and general code compliance issues. The propane heater, 9 if reactivated, would be operated without the required fire suppression in the building. 10 Unquestionably the County Code requires the building to have sprinklers, but the building has 11 none. This despite TRFD’s application stating :“The building will have sprinklers.” Schmid 12 dec. filed 5/7/21,Ex. 4, p. 7. This also despite the fact that County Code 13-17(b) (65). expressly 13 requires sprinklers. See plaintiff’s Points and Authorities in Opposition to Modification of 14 Preliminary Injunction, filed November 18,2021, p.3:21-28 15 The Court should not and cannot legally authorize a use of propane heater in a building 16 which clearly violates a very basic fire safety code requirement. It is this very fire danger that 17 plaintiffs raised at the hearing on October 15, 2021. It is unacceptable to think the mere 18 speculative assertion, unproven and unverified, that heating is needed to protect inanimate 19 objects from moisture or freezing can even conceivably outweigh the health, safety and welfare 20 of humans and their animals, of the neighboring homes and of the safe passage of vehicles on 21 Valley Ford Road, given an exceedingly high likelihood the propane tank would explode from 22 the heat generated from a building fire. There was already a major fire in the parking lot that came 23 within feet of the then extant propane tank. Schmid, dec dated 11/11/2021, para. 6. 24 Aside from being illegal and dangerous, the resumed use of the heater simply ignores a very 25 safe option that requires no heater. the use of desiccants. Further options include placing a 26 dehumidifier or fan to cause air circulation. 27 The propane heater presents numerous other misdemeanor code violations: 1) it requires the 28 outdoor storage of propane in tank, when TRFD stated there would be no outdoor storage and PLAINTIFFS’ MEMORANDUM RE JURISDICTION TO MODIFY PRELIMINARY INJUNCTION 4 1 the use permit disallows such, 2) the tank, if reinstalled, would be within the area designated for 2 parking, making it subject to being hit by wayward vehicles, 3) several feet of the tank, if 3 reinstalled, would be situated within twenty feet of plaintiffs’ property line in violation of the 20’ 4 set back requirement, and 4) it would would be illegally situated within less than 10 feet of 5 flammable vegetation, plastic, and wood. Such violations of the code as noted above are 6 misdemeanors, Thus, the installation of the propane tank would “resume continue conduct that 7 was properly enjoined by the preliminary injunction and remains criminally proscribed.” 8 Accordingly, as a matter of law the Court, under Lungren, supra, cannot modify the preliminary 9 injunction to allow its installation. 10 CONCLUSION 11 No change of facts, no change in law nor any ends of justice have been presented to 12 modify the preliminary injunction. But even if a modification were otherwise appropriate, as a 13 matter of law, it is an abuse of discretion to modify an injunction that allows for TRFD to “resume 14 and continue conduct that was properly enjoined by the preliminary injunction and remains 15 criminally proscribed.” People ex rel. Lungren v. Peron (1997) 59 Cal.App.4th 1383, 1386. TRFD 16 voluntarily removed the propane tank. Its reinstallation would require TRFD to commit multiple 17 misdemeanors. Likewise, the reactivation of the propane heater would constitute multiple 18 misdemeanors. Thus, any modification of the injunction allowing reactivation of the heater or 19 reinstallation of the propane tank may not be allowed as a matter of law. 20 Dated: February 20, 2022 Respectfully submitted, 21 22 23 Frear Stephen Schmid Attorney for plaintiffs 24 25 26 27 28 PLAINTIFFS’ MEMORANDUM RE JURISDICTION TO MODIFY PRELIMINARY INJUNCTION 5 1 RE: Schmid v. TRVD Superior Court of California, County of Sonoma 2 Case No. SCV-266225 3 PROOF OF SERVICE 4 I, SUZANNE SADOWSKI, declare as follows: 5 I am a citizen of the United States, over the age of eighteen years and not a party to the 6 above-entitled action. My business address is at 9 Willowbrook Ct, Petaluma, CA 94954. 7 On February 20, 2022, I caused the following document(s) to be served: 8 PLAINTIFFS’ MEMORANDUM OF POINTS AND AUTHORITIES RE 9 JURISDICTION TO MODIFICATION OF PRELIMINARY INJUNCTION 10 on the following persons as specified: 11 Brian M. Sanders, Esq. Michael A. King, Deputy County 12 Erickson Arbuthnot Counsel 575 Administration Drive, Room 2300 Clayton Rd., Ste. 350 105-A Santa Rosa, CA 95403 13 Concord, CA 94520 michael.king@sonoma-county.org 14 bsanders@ericksenarbuthnot.com Attorney for County of Sonoma 15 William L. Adams Johnston Thomas, Attorneys at Law, PC. 16 1400 N. Dutton Ave., #21 17 Santa Rosa, CA 95403 wadams@johnstonthomas.com 18 Attorneys for TRVD 19 20 /X/ By E-Mail - By transmitting an electronic copy of the above document(s) to the 21 following email address(es) set forth below: 22 I declare under penalty of perjury pursuant to the laws of the State of California that the 23 foregoing is true and correct. 24 Executed February 20, 2022 at Austin, Texas. 25 26 SUZANNE SADOWSKI 27 28