Email message from the Beverly Hills Courier, April 4, 2014
Los
Angeles Superior Court Judge John Torribio finally released his Metro
opinion dated March 28, 2014, ruling against the City of Beverly Hills
and the Beverly Hills Unified School District.
Let's look at the opinion itself.
What were the lawsuits
about? Two things for the most part: real facts vs. Metro expert
opinion based on no serious research, and a "hearing" required by the
Public Utilities Code which was an actual farce.
Metro, if you recall,
punched a handful of holes, hid the coring results from Beverly Hills
and BHUSD, and substituted "opinions" of their hired experts for real
facts. In response, Beverly Hills Unified actually did the research -
and found out conclusively that the Metro experts were wrong. Metro's
"experts" included a TV personality "scientist" not even licensed in
California. All of Beverly Hills' scientists hold the necessary
licenses in California.
Second, the City and
BHUSD protested the kangaroo court "hearing" held by Metro under the
Public Utilities Code. ANY public hearing must meet at least the
minimum requirement of due process, which is "fundamental fairness." By
no means was this hearing "fair" in any sense of the word. Evidence
was hidden from Beverly Hills. No cross-examination was permitted.
Metro's own lawyer acted as judge and Metro's directors the jury - and
even many of them just walked out of the "hearing."
What did Judge Torribio
do with this? He took 15-pages to say that expert opinion based on the
slimmest of facts trumps actual facts even when the "actual facts"
conclusively prove the "opinion" wrong. He wrote that evidence hidden
by Metro (to prevent it being challenged) is enough, and that the PUC
hearing didn't have to be a hearing in any real legal sense. It may be
fair to say that this entire opinion is a cover-up by a judge who
apparently simply hates California Environmental Quality Act
lawsuits. (He just nixed another big CEQA suit dealing with the Newhall
Ranch.) Well, in law and our court system, this kind of stuff happens.
As for facts that really
are not in dispute, his opinion gets them wrong - backwards at times.
He writes that the "West Beverly Hills Lineament" is where the Santa
Monica Boulevard station is supposed be built. No, wrong. The West
Beverly Hills Lineament is the hillside behind Beverly Hills High School
sloping up to Century City. Metro threw that in there to try to
threaten Beverly Hills that our high school is on an active earthquake
fault. If it is, it would have to be abandoned and could not be
rebuilt. BHUSD trenched-no active fault.
Oil wells? Judge
Torribio writes that Metro identified the abandoned wells in the path of
the digging. Metro itself, however, writes they cannot.
Judge Torribio mixes up
the two routes even worse - he writes that the Santa Monica station
route requires the trains to slow down. Backwards! It's the Metro
route that makes the trains slow down because they have to snake through
a crazy "S" turn to go under Beverly High.
Judge Torribio writes
that "Metro undertook significant analysis of the subsurface structure
of the [Constellation] Station." No, Metro did not. Metro drilled
virtually no core samples there. It never looked at anything. It also
relied on its paid-for experts that the Santa Monica Station was bad,
even though it drilled nothing there.
A good example of how
off the opinion is shows through where the Judge writes that the
distance from Santa Monica Boulevard to Constellation, one block away,
is a "considerable distance." It's about 700 feet.
For anyone who has
practiced law for over three decades and understands the scam of using
"expert" testimony as a substitute for real facts, this opinion is a
serious miscarriage of justice. Assuming the experts are ethical, the
way you get a rigged opinion even from an "ethical" expert is to make
sure the expert does not look at enough facts. As long as the "facts"
are meager, the expert has broad discretion to opine as instructed (or
hoped for). The more evidence you gather, the harder it is for an
"honest" expert to come up with the conclusion he or she is being paid
to deliver.
In this case, the
"evidence" on which Metro's experts concluded that active earthquake
faults exist where Metro wanted them was not only meager but hidden from
Beverly Hills, even though Beverly Hills went to court to get that
evidence. In response, Beverly Hills Unified actually dug huge trenches
to find the truth. Not an "opinion" but actual evidence. It's like a
fingerprint expert testifying that a little partial fingerprint "in my
opinion belongs to the accused." What if the actual "partial print" is
hidden from the defense? In criminal court, the whole thing would be
excluded by the judge. Here, Metro didn't even get a "partial print."
It obtained virtually no evidence, blocked Beverly Hill's and relied on
"expert testimony" to make its case.
As for the "hearing"
required by the Public Utilities Code, the Judge simply said that
nothing is really required, so the fact that nothing was actually
"heard" is of no consequence. In essence, he stripped the Public
Utilities Code hearing requirement of all its meaning. That blocked
Beverly Hills from cross-examining the experts which would have included
showing them the real facts and asking them whether the real research
changed their opinions. That's how you would deal with it in a real
court proceeding.
The Courier believes the
City and the Beverly Hills Unified School District will appeal this
really poorly crafted opinion. Just correcting the factual errors alone
justifies reversal. We strongly support an appeal.
The combined cases are
Beverly Hills Unified School District v. Los Angeles County Metropolitan
Transportation Authority, case no. BS137606 and City of Beverly Hills
v. Los Angeles County Metropolitan Transportation Authority, case
#BS137607.