Donald Sterling's court challenge to Clippers sale may be short-lived
Jun 23, 2014 at 11:06p ET
In the end, it may not matter whether embattled Los Angeles Clippers owner Donald Sterling is mentally competent -- his hold on the team may be wiped away after a short, perfunctory trial.
In the end, it may be a simple determination for Los Angeles Superior Court probate Judge Michael Levanas -- if Shelly Sterling followed the rules established in the family trust that controls the Clippers, her proposed $2 billion sale of the team could get a quick green light.
Levanas made no determinations in a 45-minute court hearing Monday -- attended by neither of the Sterlings -- but he repeatedly said that settling the Sterling intrafamily fight may not involve dueling doctors and extensive legal arguments.
And that could be bad news for Donald Sterling, the 80-year-old businessman who has been under fire since late April, when a tape recording emerged in which he told a companion that he didn't want her bringing black people to Clippers games. Those remarks, first reported by the celebrity gossip website TMZ, ignited a firestorm that led NBA commissioner Adam Silver to ban Donald Sterling from the league for life, fine him $2.5 million and launch the process of wresting control of the team from him and forcing its sale.
In the wake of that mess, Shelly Sterling stepped in and negotiated a sale of the team to former Microsoft CEO Steve Ballmer for a record $2 billion.
Donald Sterling, who at one point signed a letter consenting to the sale, is fighting to derail the deal. Shelly Sterling, armed with diagnoses from two doctors that her estranged husband is suffering from dementia and can no longer manage his affairs, argues he therefore can no longer serve as one of two decision makers for the Sterling Family Trust, which controls the Clippers.
Shelly Sterling wants a judge to bless that determination, and Levanas indicated at Monday's hearing that could be a simple process. Call the two doctors. Determine they are licensed and work in the field of assessing an individual's capacity. Confirm that they wrote reports after determining that Donald Sterling was suffering from dementia.
Those three steps, Levanas indicated, would satisfy a provision in the trust's governing documents that would allow Donald Sterling to be removed as a trustee.
"I could do this trial in five minutes — it's a checklist," he said. "I don't know why you need the court. Essentially, if the trustee has the power, they have the power."
Adam Streisand, a probate attorney hired by Ballmer who is seeking to join the case, agreed with the judge after Levanas likened the trust agreement to a contract between Donald and Shelly Sterling and questioned — again — whether his only job is to determine if its provisions were followed.
"You're certainly exactly right that this is an easy case, that this is a contract between two parties and that the only question for this court to really decide is whether that contract provision was complied with," Streisand said.
Ballmer's purchase agreement requires either that Donald Sterling consent to the sale or that Shelly Sterling obtain "a final and non-appealable order" from a judge giving her the sole authority to close the deal.
Donald Sterling's attorneys, Max Blecher and Bobby Samini, argued repeatedly that the question before the judge was much bigger. For instance, they asserted that Donald Sterling was tricked into meeting with the two doctors who concluded he was suffering from dementia — perhaps as a result of Alzheimer's disease — and that the language in the trust's governing documents had been altered in 2013 before he and his wife of 58 years signed off on it a second time. That change eliminated language that would have given Donald Sterling a chance to re-establish his mental capacity.
"It just disappeared," Blecher said of that provision.
And Samini bemoaned the idea that Donald Sterling could not bring his own expert witnesses into court to testify that he is mentally competent.
But time and again, Levanas returned to the core question: whether he merely needed to determine that provision 10.24B of the Sterling Family Trust was complied with. That section allows the removal of a trustee if two licensed doctors who regularly determine competency concluded, after an examination, that he or she no longer could manage his or her own affairs.
Levanas openly questioned whether he should even consider whether Donald Sterling is mentally incompetent, given the language in the trust's governing documents.
"I still don't think I'm going there because it doesn't seem to be ambiguous," he said. "The real question that I have — if it's going to be very simple on 10.24B, it's not going to be a long trial."
Going to the deeper question of Donald Sterling's competency, he said, "troubles me to some extent."
The judge scheduled a follow-up hearing on June 30. In the meantime, he told attorneys on both sides to file briefs on four questions:
*Is the trust's governing document "ambiguous" — and should he take testimony as to the meaning of its provisions?
*Should the scope of the testimony be limited merely to whether the trust's provisions were followed, or should it get into the deeper question of Donald Sterling's competency?
*Should a defense motion to delay the trial because an expert witness will be out of the country be granted — or could that physician simply testify under oath ahead of time?
*Should Ballmer be granted standing in the case, meaning his attorneys could make arguments during the trial?
The leadup to Monday's hearing featured more theatrics. According to court documents, Donald Sterling allegedly threatened the two doctors who examined him and concluded he had dementia and also verbally attacked one of his wife's attorneys.
In a call to Dr. Meril Platzer, a transcript of which was filed in court, Donald Sterling said that he was going to "see that you lose your license" and that "I'm going to sue you for a large sum, I guarantee you."
In what was described in court papers as a "profanity-laden" message to Dr. James Spar, Donald Sterling threatened to "have you lose your license" and "get you fired" and said, "I'll show you what I think of you when I see you in court."
In a call to Pierce O'Donnell, one of Shelly Sterling's attorneys, Donald Sterling vowed to "sue everyone," according to court documents.
"I'm going to take you out, O'Donnell," Donald Sterling allegedly shouted — along with a "slew of expletives."
In a court filing, O'Donnell pointed to language in the Sterling Family Trust's governing documents that says each trustee agrees to "cooperate in any examination reasonably appropriate" and "waives the doctor-patient and/or psychiatrist-patient privilege with respect to the results of such examination."
The exchange with the attorney, according to court papers, also featured a moment when Donald Sterling asked O'Donnell what he wanted. O'Donnell replied that he wanted Donald Sterling to consent to the sale of the Clippers — and noted that his attorneys "had stated at least three times to various media outlets that he would approve the sale negotiated by his wife."
"Can't a guy change his mind?" Donald Sterling replied.
Before the hearing, Levanas had written, "It is probably no surprise to anyone that this case might involve high emotions and some litigation posturing. The court respectfully asks all parties and counsel to tone down the pre-trial communications between parties, witnesses and counsel as this case will be decided on the relevant and admissible evidence provided at the time of trial."
The judge ultimately concluded that Donald Sterling's rants did not "rise to the level of great and irreparable injury to a party" under California's civil code.
The two doctors who examined Donald Sterling reached the conclusion that he was suffering from dementia based on a series of tests designed to determine whether he could recall basic facts, such as the date and the season, remember a specific series of words and connect a series of letters and numbers in order.
A third physician who looked at the reports of the other two said they offered "solid grounds for the determination that Mr. Donald T. Sterling lacks the capacity to function as a trustee of the Sterling Family Trust."
"In my professional opinion, it is extremely unlikely that Mr. Sterling's deficits in mental function are due to some treatable cause, i.e., that they are not reversible," wrote Dr. Stephen L. Read, a psychiatrist and professor at UCLA.
The Sterlings bought the Clippers in 1981 for $12.5 million.
Then came the disclosure of the tape of Sterling talking to a female friend, V. Stiviano, and expressing dismay that she had posted a photo on a social media website that showed her with NBA legend Magic Johnson.
In one exchange on the recording, which was made last September, Sterling told Stiviano to say away from Clippers games — "don't bring black people, and don't come."
He later lashed out again at Johnson during an interview with CNN's Anderson Cooper.
"What kind of guy goes to every city, has sex with every girl, then he goes and catches HIV," he said. "Is that someone we want to respect and tell our kids about? I think he should be ashamed of himself. I think he should go into the background. And what does he do for black people? He hasn't done anything."
Outside court Monday, the attorneys on opposite ends of the dispute made it clear they plan to fight.
O'Donnell, Shelly Sterling's attorney, said they fear that any delay in the trial could scuttle the deal with Ballmer because it calls for it to be completed by July 15 — with a provision that date could be extended to Sept. 15.
"Delay is the enemy of this deal," O'Donnell said. "We believe there is substantial risk if we go beyond July 15."
Samini discounted that idea and said Donald Sterling wants to hang on to the Clippers.
"Mr. Sterling is not in favor of selling the team," Samini said. "He doesn't want to sell the team. He never planned to sell the team."