Is the oil-field site of the Belmont Learning Complex, the nation’s most expensive and notorious high school construction project, safe for a school? The answer from the school district, it turns out, depends on where you ask the question.
Inside a Los Angeles courtroom, L.A. Unified says the half-finished Belmont Learning Complex sits atop a toxic pit — unfit for fowl or beast, let alone students. Outside of the downtown courthouse, which is just a short jog from both the construction site and school-district headquarters, things look different. A finished Belmont teeming with eager students would work out quite nicely, thank you, and the sooner the better, in the estimation of L.A. schools superintendent Roy Romer and his brain trust. The project was halted amid environmental concerns and political wrangling.
Call it ”A Tale of Two Belmonts“: toxic versus safe, a debate raging right now without and within the school district near you, one that promises to be a cliffhanger to the fast-approaching end.
Last week, it was the non-lethal rendition that nosed ahead: A Los Angeles Superior Court judge threw out the school district‘s malpractice suit against O’Melveny & Myers, the prestigious law firm that used to handle Belmont-related matters for L.A. Unified. In its suit, which was largely premised on Belmont being ”toxic,“ the school district failed to show that it ”suffered actual harm“ from O‘Melveny’s actions, wrote Judge Ann Kough: ”Breach of duty causing only speculative harm is insufficient.“
Nothing in this outcome will directly determine the future of the partially built school, but last week‘s ruling ought to give Belmont opponents pause: The judge just didn’t buy the toxic saga. For that reason, the school district‘s defeat builds momentum for completing the star-crossed project, and it was cause for jubilation among district employees and parents who enthusiastically support the project.
Meanwhile, school-board members — who are closely divided over Belmont — must ponder another courtroom defeat. The previous pummeling came during the summer, when an arbitrator awarded more than $20 million to Belmont contractors and developers, and a judge affirmed the decision. Now comes the O’Melveny setback, calling into question the district‘s entire litigation strategy for recovering money spent on Belmont. Thus far, the approach has cost the district millions rather than saving them. More fundamentally, does it really make sense for the school district to preach one Belmont ”truth“ in court and another outside of it?
The short, unsatisfying response is that different ends require different means. In court, the goal has been to target O’Melveny partner David Cartwright, who‘d served as primary legal adviser on the Belmont project. Cartwright and the O’Melveny firm, in other words, are the deep-pocketed bogeymen of L.A. Unified‘s efforts to retrieve at least $200 million.
Legitimate questions have long been raised about O’Melveny‘s performance, about the development deal it recommended, for example, and its handling of multiple conflicts of interest among Belmont developers and consultants, and even about O’Melveny‘s own multimillion-dollar account with the Kajima Corporation, the project’s main developer. (O‘Melveny did not represent Kajima in the Belmont transaction.) But do these alleged lapses in ethics and competence add up to massive malpractice liability — especially given that district officials and senior staff were generally complicit in events for which district lawyers now want to hold O’Melveny solely responsible? Way back in 1995, the school board voted to waive any malpractice claim based on O‘Melveny’s conflict of interest. That past action was typical of an earlier school-board majority and its Belmont-or-bust mentality.
Cartwright‘s liability also declines if the school he helped build is not as bad as advertised. Which is why the district offered the declaration of Dr. James Dahlgren, who testified that the site’s oil-field byproducts of ”methane and hydrogen sulfide exist in quantities significant enough to endanger the health and safety of students and staff on the BLC property.“ And that the quantities of dangerous gases ”may be high enough to cause sudden injury or death.“
District litigators also fault Cartwright for favoring an abbreviated environmental review. But district administrators, rightly or wrongly, are currently using the same process themselves, citing the same rationale as Cartwright: that the shorter review is safe enough and that it gets schools built faster.
If district officials really believed what they wanted the judge to accept, they would have fled the Belmont environs in gas masks. Instead, they‘ve purchased a new district headquarters building practically next door to the hulk of the learning complex.
”It’s odd to read those papers where Belmont is described as a toxic dump,“ said school-board member Jose Huizar, who represents the Belmont area. ”This litigation was headed in a different direction than the bidding process to finish the school. Our litigators may have exaggerated what actually exists there for the sole purpose of building a strong case. I am of the belief that the site can be made safe.“
Ultimately, the judge‘s legal conclusions frustrated both district lawyers and Belmont critics, who noted that it would be difficult to specify exact financial damages that resulted directly and uniquely from the actions of O’Melveny. ”The judge relied on a nearly impossible standard of proof,“ said union researcher David Koff, a staunch and knowledgeable Belmont project opponent.
O‘Melveny spent millions in its defense, while also hiring another top firm, Gibson, Dunn & Crutcher, to represent it in court. ”The school district lost everything,“ said ebullient O’Melveny partner Ralph Shapira. ”The case is gone, dead, buried.“
Judge Kough, however, did leave an opening. She wrote that a pending ruling in a malpractice case currently before the California Supreme Court has the potential to undo her findings. This case, Viner v. Sweet, could set a new, lower standard for malpractice, one that requires only a showing of negligence that was a ”substantial factor“ contributing to financial losses. Kough noted that her ruling ”would have been different had Viner been the applicable standard.“ One member of the school district‘s legal staff called the judge’s analysis ”an invitation to appeal.“
A successful appeal means only that the district gets to have a trial — a trial that could be won or lost. And it just might matter to a future jury if O‘Melveny demonstrates that the district is preaching one thing in court and another outside it. All the while, the school district still needs some 20 new high schools. And there’s a decent chance that the Belmont Learning Complex would provide 3,500 seats more quickly, and at a lower cost of new dollars than any other construction effort the district is currently contemplating. At least that‘s what the school district says outside of court.
Proposals for finishing Belmont are scheduled for their first public review on February 12; the school board could make its decision as soon as mid-March. ”Regardless of what happened with the litigation,“ said board member Huizar, ”we should look at the real issue — relieving a drastically overcrowded area where kids desperately need seats.“