To the Editor:

I regret to inform my friends and supporters that on 28 Jan., I filed a request to dismiss my lawsuit against the SHCHD Board without prejudice. This request was entered as requested by the Clerk of the Court the same day. The proximate cause for this filing was my inability to obtain the legal and financial resources required to proceed with the case. Another cause was the unwillingness of the defendants to negotiate in good faith and compromise during settlement negotiations. An additional cause is the affinity of the defendants for procedural gambits when their substantive arguments are weak. Such procedural moves can be time-consuming and expensive. Other considerations were the time, effort and financial resources that I had already spent as a result of my association with SHCHD as a member of the Board of Directors; estimates of the additional time, effort and financial resources that proceeding with the case would consume; and the uncertain final outcome despite the strength of my case.

After I filed my lawsuit, I applied to both the American Civil Liberties Union (ACLU) and the First Amendment Project for assistance. The ACLU sent me a form letter saying they did not provide the type of assistance I requested. However; the First Amendment Project was very interested in my lawsuit. The executive director of the organization read a number of the materials I provided and the staff attorney read all of them. Unfortunately, they eventually decided that their legal and financial resources were already spread too thin to help me.

SHCHD’s insurance company retained “Godzilla” to defend them against my lawsuit. “Godzilla” is a full partner in one of the 200 largest law firms in the U.S., which has offices in the San Francisco Financial District and 10 other states. “Godzilla” believes in the “shock and awe” theory of how to win cases; i.e. scare the opposition to death. His first communication to me supposedly contained an “Offer in Settlement.” Actually it was a 4-page diatribe laced with insults and threats. The defendants denied all of my allegations, which is customary in these circumstances. However, the arguments made to back up these denials were often poorly reasoned, frivolous and failed to support their conclusions. Acceptance of this document would have required complete capitulation.

I wrote a 10-page rebuttal of the arguments contained in defendant’s “Offer in Settlement,” pointing out all the arguments I considered to be frivolous. I delayed making a decision on this “Offer” pending receipt of “Godzilla’s” response to all of the points I made in my rebuttal, a detailed list of what he saw as the weaknesses in my complaint and a draft of the document he would ask me to sign to settle the case. He agreed to provide these items.

Recently he sent me a draft of an 8-page “Settlement Agreement.” I still don’t have the other items he promised. Evidently “Godzilla” can’t detach himself from the “shock and awe” theory. The insults and threats contained in this document were somewhat muted, but still clear. In this document the defendants again denied all of my allegations, using many of the frivolous arguments from the “Offer of Settlement.” Signing this document would require absolute and unconditional surrender on my part. It starts too far from a fair and equitable outcome to result in any meaningful negotiation and compromise. On top of that, there are clear indications that the defendants are not willing to negotiate with me in good faith and compromise on any issue of fact or law, no matter how weak their arguments are.

The doctrine of consideration requires that each of the parties to an agreement receive something of value for an agreement to be valid. Essentially the defendants’ draft agreement asks me to agree to many items that are contrary to the facts and/or the law for no tangible benefit whatever.

I volunteered to run for the SHCHD Board to serve the community. The abuse I suffered resulting from the Board’s flagrant violations of the Brown Act will not be redressed. Justice is only available for those who have access to deep pockets. As the old saying goes: “no good deed goes unpunished.”

Ed Smith

Elk Ridge

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