Schmid v. Two Rock Volunteer Fire Dept. CA1/5

Filed 5/11/23 Schmid v. Two Rock Volunteer Fire Dept. CA1/5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FIVE

FREAR STEPHEN SCHMID et al. , Plaintiffs and Appellants, A164620 v. TWO ROCK VOLUNTEER FIRE (Sonoma Super. Ct. DEPARTMENT, INC., No. SCV266225)

Defendant and Respondent.

Frear Stephen Schmid and Astrid Schmid appeal an order modifying a preliminary injunction that imposed various restrictions on a fire department’s use of a garage housing its fire trucks and related equipment. The Schmids, whose rural property abuts the garage, correctly contend a then-pending appeal from the preliminary injunction had divested the trial court of fundamental jurisdiction when it issued the modification order. The order is therefore void and must be reversed.

BACKGROUND The Schmids sued the Two Rock Volunteer Fire Department for declaratory and injunctive relief, alleging among other things that its newly constructed garage violated local code provisions and zoning ordinances and that the use permit for the facility was null and void. In August 2021, the trial court partially granted the Schmids’ motion for a preliminary

1

injunction, limiting the department’s activities at the garage and circumscribing its use of a propane tank and heater, external lighting, and a mobile generator pending resolution of the litigation.

The department did two things: it moved for reconsideration in the trial court, and it appealed the preliminary injunction in Two Rock Volunteer Fire Department v. Schmid et al., No. A163534. The record in appeal No. A163534 was filed in this court on October 12, 2021.

The trial court heard argument on the motion for reconsideration on February 9, 2022. In response to concerns about the superior court’s jurisdiction over the matter while the appeal was pending, the department stated in open court that it was abandoning the appeal. On February 14, 2022, it attempted to abandon the appeal by filing a form in the superior court.