Anello v. Schmid CA1/1

Filed 6/11/21 Anello v. Schmid CA1/1
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE

LORI ANELLO,
Plaintiff and Respondent,
A160440, A160540
v.
FREAR STEPHEN SCHMID, (Sonoma County
Super. Ct. No. SCV-266198)
Defendant and Appellant.

Respondent Lori Anello obtained a temporary restraining order (TRO)
and then a civil harassment restraining order against appellant Frear
Stephen Schmid. Schmid, an attorney who appears in propria persona,
appealed from the TRO in case No. A160440 and from the restraining order
in case No. A160540. We conclude that the first appeal is moot and therefore
dismiss it, and we conclude that the second appeal lacks merit and therefore
affirm the trial court’s order.
I.
FACTUAL AND PROCEDURAL
BACKGROUND
Anello is the chief of the Two Rock Volunteer Fire Department in
Sonoma County, and her husband is a captain with the department. They
live next to the department’s fire station. Schmid is their neighbor.

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 In late 2019 and early 2020, a new fire building was under construction
on property adjacent to Schmid’s. Anello saw Schmid yelling and screaming
at various workers in late 2019 and in February 2020. On one occasion in
February, Schmid came to the building and screamed expletives and
vulgarities at Anello when she asked if she could help him, leaving only after
an electrician working on the building called the sheriff’s department.
On April 28, 2020, Anello filed a request for a civil harassment
restraining order (Code Civ. Proc., § 527.6) to protect herself, her husband,
and some “Two Rock Volunteer Fire Dept. Personnel.”1 The petition alleged
that “Mr. Schmid refuses to accept that the County has fully permitted,
approved[,] and final inspected [sic] the new Two Rock Volunteer Fire
Department Fire Station. He assaults, berates, threatens[,] and harasses
repeatedly.” Anello attached statements from herself, her husband, the
electrician who witnessed Schmid’s outburst in late February, and the
president of the fire department’s board of directors.
The trial court granted a TRO on the same day Anello filed her request.
The court ordered Schmid not to harass or contact Anello or her husband and
to stay away from them, their homes, their workplaces, and their vehicles.
The court declined, however, to apply the TRO to the Two Rock Volunteer
Fire Department personnel. The court then scheduled a hearing on the
request for the restraining order for June 23, and the TRO was scheduled to
expire that day. The notice of hearing did not identify the judicial officer who
would preside at the hearing.
As part of its response to the global COVID-19 pandemic, the trial court
on June 5 notified the parties that “pursuant to the 5/5/20 order of the
Presiding Judge,” the hearing on the request for a restraining order would

1 All further statutory citations are to the Code of Civil Procedure.

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“be conducted remotely via Zoom.” The notice provided instructions on how
the parties could participate either online or by phone. This notice again did
not identify the judicial officer who would preside at the hearing. Although
the proof of service indicates that the notice was sent by mail on June 5,
Schmid alleges that the envelope in which it was sent was not postmarked
until June 8.
On June 16, seven days before the scheduled hearing, Schmid filed an
objection to proceeding remotely. His filing was captioned “Respondent’s
Objection to Remote Hearing by Zoom and Declaration in Support Thereof.”
In it, Schmid objected to the hearing taking place by videoconference,
complained that he was given inadequate notice of the “radical change in
process,” and argued he was “entitled to a live hearing in a physical
courtroom open to the public.” He claimed that the hearing should not be
held remotely because Anello had thwarted his discovery requests and the
“case [needed] personal attendance of various witnesses.” He added, “There
is also the issue of a court reporter being present for transcription and the
logistics thereof.” He also claimed that “the remote hearing [would] deny
[him] a fair opportunity to be heard and to present his case in violation of due
process of the law.” He maintained that “the County has been reopened for
most businesses, and houses of worship. Certainly, the courts can
accordingly afford parties to use . . . the courtrooms and services thereof and
there [was] no sufficient cause to deny [him] full access to a regular hearing.”
At the end of the pleading, he included a statement objecting to a hearing and
decision by a commissioner. Two days after filing his objection, Schmid
appealed from the TRO in case No. A160440.
The hearing on June 23 proceeded as scheduled, but the appellate
record reveals little about what transpired. The record includes the trial

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court’s docket sheet and a copy of the restraining order, but it does not
include a transcript or other record of the proceedings. Basically, all the
record reveals is that Anello and her counsel were present, Schmid was not
present, a commissioner presided, and Anello stipulated to the authority of
the commissioner. In her appellate brief, Anello states that at the hearing
the commissioner “considered the documentary record and received testimony
from [Anello,] . . . including questions from [Anello’s] counsel and additional
questions from the Court.” At the conclusion of the hearing, the restraining
order was issued, requiring Schmid to stay away from and not harass or
contact Anello and her husband for three years. Schmid appealed from the
restraining order in case No. A160540, and we ordered the two appeals
consolidated for purposes of decision.
II.
DISCUSSION
A. The TRO at Issue Was Appealable, but the Appeal Is Moot.
The parties disagree about whether the TRO was appealable. It was.
(§ 904.1, subd. (a)(6) [orders granting or denying an injunction are
appealable]; Nakamura v. Parker (2007) 156 Cal.App.4th 327, 332 [order
denying TRO is appealable].) But although the TRO was appealable, the
appeal is clearly moot, as the TRO expired more than two weeks before this
court docketed Schmid’s appeal.
“ ‘ “[T]he duty of this court, as of every other judicial tribunal, is to
decide actual controversies by a judgment which can be carried into effect,
and not to give opinions upon moot questions or abstract propositions, or to
declare principles or rules of law which cannot affect the matter in issue in
the case before it.” ’ ” (Eye Dog Foundation v. State Board of Guide Dogs for
the Blind (1967) 67 Cal.2d 536, 541.) An appellate court will dismiss an
appeal when an event occurs that renders it impossible for the court to grant

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effective relief. (Ibid.) An appeal from an expired TRO after the trial court’s
grant of a permanent restraining order is moot and subject to dismissal.
(O’Kane v. Irvine (1996) 47 Cal.App.4th 207, 210, fn. 4.)
In supplemental briefing, Schmid argues that we should find an
exception to mootness because the case “raises an important issue that is
likely to recur yet evade review.” We disagree that the appeal from the TRO
raises any such issue. Schmid’s argument—that because Anello failed to
check a box on her form request for a restraining order, the “commissioner
had no jurisdiction to issue the TRO” and subsequent proceedings were
“void”—is specious. In the portion of the form request an applicant fills out
when seeking a TRO, Anello stated, “I am fearful of another assault or more
serious violent conduct against me, my family[,] or Two Rock Volunteer Fire
Department Personnel.” This statement and its placement in the form
request were more than sufficient to put Schmid on notice that Anello was
seeking a TRO.
As to other issues pertaining to the TRO, they were forfeited or
meritless, many for the reasons we discuss below in connection with the
restraining order. They do not present important issues that are “capable of
repetition, yet evading review,” and we decline to exercise our discretion to
consider them. (People v. Alsafar (2017) 8 Cal.App.5th 880, 886.)
B. Schmid’s Claims Involving the Restraining Order Lack Merit.
1. Background on civil restraining orders
Section 527.6, subdivision (a)(1), provides that a victim of “harassment
. . . may seek a [TRO] and an order after hearing prohibiting the harassment
as provided in this section.” To provide quick relief, “[a] request for the
issuance of a [TRO] without notice under this section shall be granted or
denied on the same day that the petition is submitted to the court.” (§ 527.6,

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subd. (e).) Subject to the provisions governing continuances, a hearing on the
petition shall be held “[w]ithin 21 days, or, if good cause appears to the court,
25 days from the date that a petition for a temporary order is granted or
denied.” (§ 527.6, subd. (g).) “Compared to the normal injunctive procedures
set forth in the Code of Civil Procedure, section 527.6 provides a quick,
simple[,] and truncated procedure.” (Yost v. Forestiere (2020) 51 Cal.App.5th
509, 521 (Yost).)
To balance the expedited procedures in section 527.6 with protections
for the person against whom the allegations are leveled, the Legislature
established “safeguards and several provisions limiting the scope” of
restraining orders. (Yost, supra, 51 Cal.App.5th at p. 521.) “For instance, the
statute initially limited the duration of a restraining order to three years.
[Citation.] The current version of the statute restricts the duration to ‘no
more than five years.’ ” (Ibid.) Other safeguards “assure[] that a person
charged with harassment is given an opportunity to present his or her case”
and “allow[] either party to bring a motion to terminate or modify the
restraining order.” (Id. at p. 522.)
We review the decision to issue a restraining order for abuse of
discretion and any factual findings supporting the restraining order for
substantial evidence. “ ‘We resolve all conflicts in the evidence in favor of
[the] respondent . . . and indulge all legitimate and reasonable inferences in
favor of upholding the trial court’s findings.’ ” (Parisi v. Mazzaferro (2016)
5 Cal.App.5th 1219, 1226.)
2. Some of Schmid’s arguments were forfeited because they
were not raised below.
Generally, a party’s failure register a proper and timely objection to a
ruling or proceeding in the trial court forfeits the issue on appeal. (Bell v.
American Title Ins. Co. (1991) 226 Cal.App.3d 1589, 1602; see In re

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S.B. (2004) 32 Cal.4th 1287, 1293; Ochoa v. Pacific Gas & Electric Co. (1998)
61 Cal.App.4th 1480, 1488, fn. 3 [“It is axiomatic that arguments not asserted
below are waived and will not be considered for the first time on appeal”].)
“ ‘The rule that contentions not raised in the trial court will not be
considered on appeal is founded on considerations of fairness to the court and
opposing party, and on the practical need for an orderly and efficient
administration of the law.’ [Citations.] Otherwise, opposing parties and trial
courts would be deprived of opportunities to correct alleged errors, and
parties and appellate courts would be required to deplete costly resources ‘to
address purported errors which could have been rectified in the trial court
had an objection been made.’ ” (In re S.C. (2006) 138 Cal.App.4th 396, 406.)
These principles compel us to conclude that Schmid forfeited the
arguments he raises for the first time on appeal. The forfeited arguments
include his claims that the restraining order violated his property rights, his
rights under the First and Second Amendments, his “state civil process
protections,” and his “liberty to engage in free movement and engagement in
life’s social and commercial activities.” Although we could exercise our
discretion to excuse the forfeiture, we decline to do so. (See In re
Wilford J. (2005) 131 Cal.App.4th 742, 754.)
At oral argument, Schmid insisted that he was unable to raise his
objections below because proceedings in the trial court were stayed once he
appealed from the TRO. But, as discussed below in part II.B.4.a., the
proceedings were not stayed, and Schmid wrongly concluded he could ignore
those proceedings on the assumption that the trial court lacked jurisdiction.
3. Some of Schmid’s arguments fail because the record is
inadequate to review them.
As we have said, our record does not include a reporter’s transcript or
any other record of what evidence and arguments were presented at the

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hearing. Consequently, we must reject Schmid’s claims that the restraining
order was supported by insufficient evidence and that Anello failed to
demonstrate a reasonable probability that he would continue to harass her.
The burden of showing reversible error by an adequate record falls on
the party challenging the judgment or order. (Ballard v. Uribe (1986)
41 Cal.3d 564, 574.) “[T]he reviewing court presumes the judgment of the
trial court is correct and indulges all presumptions to support a judgment on
matters as to which the record is silent.” (Baker v. Children’s Hospital
Medical Center (1989) 209 Cal.App.3d 1057, 1060.) Thus, “ ‘[i]t is the duty of
an appellant to provide an adequate record to the [appellate] court
establishing error. Failure to provide an adequate record on an issue
requires that the issue be resolved against [the] appellant.’ ” (Hotels Nevada,
LLC v. L.A. Pacific Center, Inc. (2012) 203 Cal.App.4th 336, 348.)
Where “the record on appeal consists of only a clerk’s transcript and
exhibits and no error appears on the face of the record, the sufficiency of the
evidence to support the trial court’s rulings is not open to consideration by a
reviewing court; in such a case, ‘any condition of facts consistent with the
validity of the judgment will be presumed to have existed rather than one
which would defeat it.’ ” (County of Los Angeles v. Surety Ins. Co. (1984)
152 Cal.App.3d 16, 23.) If a reporter’s transcript of the hearing was not
obtainable, Schmid could have avoided the application of this rule by
proceeding with an agreed or settled statement.2 (Leslie v. Roe (1974)
41 Cal.App.3d 104, 108; see Cal. Rules of Court, rules 8.134, 8.137.) Because

2Although on October 16, 2020, Schmid filed an “Appellant’s Proposed
Settled Statement” in the trial court, we have no record that it was ruled
upon, and it is in any event unhelpful in revealing what occurred at the
hearing.

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we lack an adequate record of what transpired at the hearing, we must reject
his claims involving the sufficiency of the evidence.
4. Schmid’s remaining arguments lack merit.
a. The trial court retained jurisdiction to issue the
restraining order notwithstanding Schmid’s appeal of
the TRO.
Schmid argues that the trial court lacked jurisdiction to proceed with
the hearing because he had appealed the TRO. The argument is not subject
to forfeiture principles because it is jurisdictional. (See Rochin v. Pat
Johnson Manufacturing Co. (1998) 67 Cal.App.4th 1228, 1239.) Nonetheless,
it lacks merit.
Section 916, subdivision (a), provides that “the perfecting of an appeal
stays proceedings in the trial court upon the judgment or order appealed from
or upon the matters embraced therein or affected thereby” and that “the trial
court may proceed upon any other matter embraced in the action and not
affected by the judgment or order.” Subdivision (b) of the statute provides
that “[w]hen there is a stay of proceedings other than the enforcement of the
judgment, the trial court shall have jurisdiction of proceedings related to the
enforcement of the judgment as well as any other matter embraced in the
action and not affected by the judgment or order appealed from.”
Under these provisions, “[g]enerally, the appeal of an order denying a
preliminary injunction does not automatically stay the trial. [Citations.] The
rationale is that a preliminary injunction is a provisional remedy ‘distinct
from the main action.’ ” (Reed v. Superior Court (2001) 92 Cal.App.4th 448,
453–454.) An order granting or denying a TRO is usually considered to be a
collateral matter, since it is designed merely to preserve the subject of the
litigation pending a determination on the merits, and therefore an appeal
from it does not deprive a trial court of jurisdiction to proceed on the merits.

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(Gray v. Bybee (1943) 60 Cal.App.2d 564, 571; 13 Witkin, Cal. Proc. (5th ed.
2020) Appeal § 21.) Here, the TRO was designed to expire, and it in fact
expired, on the date of the hearing on the restraining order. Thus, the TRO
was clearly a collateral matter, and Schmid’s appeal of it did not affect the
trial court’s jurisdiction to proceed with the hearing on the restraining order.
b. We reject Schmid’s claim that the trial court lacked
jurisdiction because he did not consent to the
commissioner.
Schmid also claims that the commissioner did not have jurisdiction to
issue the restraining order because Schmid did not consent to a
commissioner. We are not persuaded. True enough, Schmid stated his
opposition to a commissioner at the end of his filing entitled “Respondent’s
Objection to Remote Hearing by Zoom.” A commissioner is not empowered
when a party refuses to stipulate to his or her authority. (See Yetenekian v.
Superior Court (1983) 140 Cal.App.3d 361, 366; Cal. Const., art. VI, § 21.)
But Schmid then chose not to participate in the remote hearing, and he did
not claim below and does not claim on appeal that he was unable to
participate or was prevented from doing so. Furthermore, Schmid has not
shown that he was notified that the judicial officer who would preside at the
hearing would be a commissioner, and we have rejected his argument that he
was excused from appearing based on his incorrect belief that the trial court
lacked jurisdiction.
Given Schmid’s failure to appear and to offer any legitimate excuse for
it, we must conclude that the commissioner had authority to act. Section 259,
subdivision (g), provides that commissioners are authorized to “[h]ear, report
on, and determine all uncontested actions and proceedings subject to the
requirements of subdivision (d).” The hearing became “an uncontested action

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or proceeding by virtue of [Schmid’s] failure to answer or appear.”
(Reisman v. Shahverdian (1984) 153 Cal.App.3d 1074, 1093.)
The requirements of section 259, subdivision (d), in turn, authorize
commissioners to “act as temporary judges when otherwise qualified to so act
. . . on stipulation of the parties litigant.” (§ 259, subd. (d).) While Schmid
was clearly a party litigant before the hearing, he lost such status by not
attending the hearing without having, much less expressing, a legitimate
reason for doing so. A commissioner’s power to serve as a temporary judge
“ ‘[o]n stipulation of the parties litigant’ ” does not depend on a stipulation
from one who lacks such a status. (Reisman v. Shahverdian, supra,
153 Cal.App.3d at p. 1089.) Parties—including ones who, like Schmid, did
participate in earlier proceedings—can lose their party-litigant status by
failing to appear at a hearing on a motion. (Id. at p. 1091.) “ ‘ “The phrase
‘parties litigant . . .’ does not include parties . . . who willfully remain away
from the trial . . . . [T]here is no injustice [in such a case] in ruling that they
waived their rights to object to the appointment of . . . a judge pro
tempore.” ’ ” (Id. at p. 1092.) Here, Schmid forfeited his party-litigant status
by not appearing at the hearing, and the commissioner was therefore
authorized to proceed upon Anello’s stipulation to his authority.
c. Schmid has not carried his appellate burden to
demonstrate that the remote hearing deprived him of
due process or equal protection.
Lastly, Schmid argues that the remote hearing deprived him of due
process and equal protection. Again, we are not persuaded.
Schmid argues that his due process rights were violated because the
notice that the hearing would be conducted by videoconference was “dated
June 5, 2020[,] but mailed per the postmark on June 8, 2020, thus giving
[him] deficient and inadequate notice of this [monumental] and radical

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change in process.” He argues that he was “entitled to a live hearing in a
physical courtroom open to the public where he [could] present his case,
including presenting and introducing documentary evidence, to confront
witnesses and [Anello] by means of examination and cross-examination[,] and
to see and perceive the body language and physical actions of witnesses,
attorneys, [Anello,] and the Judge, and so that the Judge may also so partake
in and perceive the proceedings live.”
We first disagree with Schmid that the notice of the hearing was
constitutionally deficient. By his own concession, the notice was postmarked
on June 8, about two weeks before the hearing date. Not only did the notice
provide Schmid with an opportunity to object to the hearing, he in fact
exercised the opportunity by objecting. Thus, the notice was constitutionally
sufficient. (See, e.g., Moore v. California Minerals Products Corp. (1953)
115 Cal.App.2d 834, 837 [court must give an affected party an opportunity to
be heard if its conception of the nature of a hearing materially changes].)
We also disagree with Schmid’s conclusory assertion that his rights to
due process were violated by the hearing’s format. To begin with, Schmid is
hardly in a position to comment on the effectiveness of the remote hearing
since he did not participate in it. Moreover, he identifies no specific harm
that he allegedly suffered. He identifies no testimony, piece of evidence, or
argument that he was unable to present or challenge. An alleged error only
warrants reversal if the appellant can show the error was prejudicial.
(Douglas v. Ostermeier (1991) 1 Cal.App.4th 729, 740; see People v.
Esayian (2003) 112 Cal.App.4th 1031, 1042 [claim that procedure violated
due process generally requires showing of fundamental unfairness].) Finally,
even if Schmid were able to identify some such alleged harm, we would likely
be unable to evaluate it since he failed to provide us with an adequate record

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of the proceeding. In short, he has not sustained his appellate burden of
demonstrating a due process violation.
Schmid has similarly failed to demonstrate that his rights to equal
protection were violated. He claims that his rights were infringed upon
because “the Sonoma [County] Superior Court was conducting live hearings
in some cases” and the burden was “on the court to demonstrate why [he]
could not conduct the trial live and in person with proper social distancing.”
But Schmid does not identify or describe those who were being provided with
live hearings or provide sufficient information or argument for us to evaluate
any differences or distinctions in the superior court’s practices. “We may
‘disregard conclusory arguments that are not supported by pertinent legal
authority or fail to disclose the reasoning by which the appellant reached the
conclusions [the appellant] wants us to adopt.’ ” (City of Santa Maria v.
Adam (2012) 211 Cal.App.4th 266, 287.) “In order to demonstrate error, an
appellant must supply the reviewing court with some cogent argument
supported by legal analysis and citation to the record.” (Id. at pp. 286–287.)
Because Schmid has failed to provide such an argument, we reject his equal
protection claims.
C. We Decline to Award Anello Attorney Fees or Sanctions.
Finally, we address Anello’s “request for [an] order for Schmid to pay
[her] attorney’s fees, costs, damages[,] and sanctions.” (Some capitalization
omitted.) Below, Anello requested an award of attorney fees and costs in the
amount of “$9,556.58 incurred through the uncontested hearing on June 23,
2020.” (See § 527.6, subd. (s).) The form restraining order, however, left
blank the portion that would be completed if fees had been awarded. We
must infer from this that the request was denied. And since Anello did not
cross-appeal from this denial, we will not consider her request for fees

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incurred in the trial court. (See Estate of Powell (2000) 83 Cal.App.4th 1434,
1439 [“As a general matter, ‘a respondent who has not appealed from the
judgment may not urge error on appeal’ ”].)
In her appellate briefing, Anello claims to have continued “to accrue in
excess of $30,000.00 [in attorney fees] at this point.” While she apparently
asks us to award her appellate fees under section 527.6, subdivision (s), she
provides no further explanation, support, or argument for such an award.
Although we find that Schmidt’s appeal lacked merit and was poorly
conceived, we are not persuaded that it was frivolous or brought for purposes
of delay. (See § 907.) Thus, we decline to award Anello the attorney fees she
incurred on appeal, and we similarly deny her request for sanctions. We will,
however, award her appellate costs as the prevailing party in both appeals.
(Cal. Rules of Court, rule 8.278(a)(1)–(2).)
III.
DISPOSITION
The appeal in No. A160440 is dismissed. The order appealed in
No. A160540 is affirmed. Anello is awarded her costs in both appeals.

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 _________________________
Humes, P.J.

WE CONCUR:

_________________________
Banke, J.

_________________________
Sanchez, J.

Anello v. Schmid A160440/A160540

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