‘Strays’ Battle Outsider Status in Negotiations

They have been so lost in the Big Rock Mesa legal shuffle that they were anointed with a nickname to identify their status: the strays.

They are the 16 Big Rock homeowners who, for various reasons, did not sign up with the two law firms that represented the 240 property owners recently awarded a $97-million settlement.

The attorneys for most of the stray plaintiffs are still trying to negotiate a settlement with Los Angeles County, the California Department of Transportation and several insurance companies for damage their clients suffered in the massive Big Rock Mesa landslide in 1983.

Some have already settled. Malibu attorney Carolyn Wallace, who represented three of the stray plaintiffs, recently negotiated a settlement with the government agencies and said that next week she expects to sign an agreement that will pay her clients about $100,000 each.

Another attorney, Charles E. McClung, who represents six homeowners, reached a separate agreement with Caltrans last year for $50,000 to $75,000 apiece. But he is still pursuing damage claims against the county, the insurance companies and about 50 Big Rock homeowners who he believes are partially responsible for the slide.

‘Squeezed Out’

The attorneys and the homeowners are angry that they were not included in the large settlement, claiming that they were shut out by Ken Chiate and Richard Norton’s law firms because including them would have reduced the total amount paid to each homeowner.

“We’ve been squeezed out,” said attorney Joyce Mendlin, who represents two stray plaintiffs. “I would have been very happy to join in the larger settlement but we were never allowed to. We were just too small to deal with.

“From the beginning we’ve been treated differently. Just by calling us stray plaintiffs, it puts us in a pejorative light. But if it just means that it’s going to require more persistence on our part to resolve this case, then that’s what we will give it.”

Norton and Chiate say they would have considered including the group of 16 if their attorneys had contributed money to the cost of handling the case.

Norton and Chiate say the lawyers for the strays were just trying to “coattail” the case: letting Norton and Chiate do all the work, then trying to join in the settlement. In addition, they said that the attorneys for the strays had numerous opportunities to settle, especially since all of the attorneys in the case attended the same settlement conferences, but had been seeking sums far exceeding the amount ultimately awarded to their clients.

“It’s true, in a certain way, that we coattailed the lawsuit, but it didn’t make sense for us to lead it since we were only representing a few clients,” Mendlin said.

Peter Anderson, the attorney for the county who is handling settlement negotiations with the strays, said that the county has offered each homeowner $40,000 to resolve the litigation. He said the county plans to go ahead with a trial if the remaining strays don’t settle. Mendlin and McClung say that they will team up if a trial becomes necessary.

“In reality, if they’re feeling that the longer they hold out the greater the chance that we’ll increase the offer, then they are incorrect,” Anderson said. “We’d like to resolve the balance of the cases but if they remain recalcitrant, then we’ll prepare to try those cases.”

However, McClung said that the settlement offers are far from equitable for the remaining Big Rock Mesa property owners.

“The county’s offer to us is just not adequate,” McClung said. “We believe we should receive at least the same compensation as the other (240) homeowners. But now the county believes that they can afford to take us to trial. Frankly, I think we have an excellent lawsuit.

If their case goes to trial, McClung and Mendlin will try to prove the same thing that Norton and Chiate attempted during five years of litigation: that the government agencies were responsible for the huge landslide in 1983 because they approved development of the Big Rock Mesa area with seepage pits and horizontal drains, rather than sewers. They claim that the county’s action contributed to a rise in ground water that triggered the slide.

Some of the strays doubt their chances of winning a legal fight against the county without the might of several hundred homeowners behind it. And the cases involving some of the other strays underscored the complexity of the Big Rock litigation.

Ray Kinner, a developer who sold two Big Rock Mesa properties to Chiate and August Hansch--another key figure in the case--originally asked Chiate to represent him but was turned down because of a conflict of interest. Norton represented Hansch in a suit against Kinner in which the developer was sued for allegedly selling the property without fully disclosing some of the geologic problems on Big Rock. So Kinner had to find other legal counsel.

“It’s amazing to me that some of the people (homeowners) who caused the problem are sharing in the settlement,” said Kinner, who owns an undeveloped four-acre parcel on Big Rock Mesa. “I’m really disappointed that the county would agree to settle with all of the others and then continue to fight us.

“They’ve left the small group out there to fend for themselves. It’s like David going against Goliath, but without the numbers on our side, I don’t think we stand a chance.”