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Filed 6/11/21 Anello v. Schmid CA1/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or 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 ONE

LORI ANELLO,

Plaintiff and Respondent,

v.

FREAR STEPHEN SCHMID,

Defendant and Appellant.

 A160440, A160540

 (Sonoma County

 Super. Ct. No. SCV-266198)

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. 
2

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 

2 Although 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 
13

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 
14

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