Metro Case Judge Writes Bad Opinion –Facts Wrong, Backwards
From the Publisher Clif Smith
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.