The fire district and the homeowner groups decided to turn the matter of the attorney fees to a mediator, which helped them achieve the settlement amount, said Jim Fleming, an attorney representing the Lost Valley Community Association and the Moraga-Del Rey Homeowners' Association.
At a closed session last month, the fire district board approved the settlement agreement, clarifying that the settlement amount of $198,000 will go directly to the law firm of Fleming and Phillips, LLP.
The settlement money will not come directly from fire district funds, and will instead be paid through the Contra Costa County Joint Powers Agreement, to which the district belongs and pays into. In February this year, the California 1st District Court of Appeal had ruled the district's lawsuit violated the homeowner associations' freedom of speech in what the law bans as a Strategic Lawsuit Against Public Participation, (SLAPP), which is intended to prevent lawsuits from being used as a means of intimidating those attempting to exercise their First Amendment rights. As part of the settlement, the homeowners associations agreed to release board director Dr. Eugene Gottfried, as well as the district from any further claims they may have against them. The fire district agreed to adopt a resolution at its Nov. 17 meeting affirming its commitment to the Brown Act; accepting the Court of Appeal's decision concerning the lawsuit; and reaffirming its commitment to having public input on matters of district business. Both sides agreed to limit their comments about the settlement to a joint statement that is part of the agreement.
The district had sued the two associations in September 2002, challenging the validity of statements made by the groups in a voter information pamphlet being prepared for the November election. The statements opposed the district-sponsored ballot measure to increase Orinda's fire flow tax to subsidize improvements to the city's water pipes.
In its suit, the fire district called the statements "false and misleading."
A Contra Costa Superior Court judge who first heard the suit determined the fire district had missed a filing deadline and dismissed it. Judge James Trembath also continued to a later date a motion filed by the two associations, alleging that the district action constituted a SLAPP suit.
The opposition statements were printed in the voter pamphlet.
In November 2003, Trembath ruled that the anti-SLAPP motion was moot because he had already dismissed the fire district's suit.
Fleming said he appealed that decision because even if the fire district's suit had been dismissed, the intent to infringe upon the associations' constitutional rights had existed.
Fleming said he approached the fire district with an offer to settle and was turned down. During the appeal process, the court also encouraged the two parties to mediate.
