Day 1 Of Sterling Trial: Bad Day For Donald
Donald Sterling had a horrible day yesterday in court. His attempt to shut down the trial on its first day and move the case to federal court was rejected. When the case restarted in front of Judge Michael Levanas, Shelly Sterling's attorneys called Donald Sterling as their first witness, but he was nowhere to be found. When the trial continued, Judge Levanas rejected Donald Sterling's arguments to bar testimony from the doctors who examined him in May and certified that he was mentally incapacitated. The testimony from the first of those doctors, Meril Platzer, painted a devastating picture of Donald Sterling as indifferent to his advancing Alzheimer's Disease.
Today will likely be the pivotal day of the trial. Donald Sterling is scheduled to testify at 2:30 PDT, staring with questioning by Shelly Sterling's attorney's. Before Donald Sterling testifies, Dr. Platzer will be cross-examined by Donald Sterling's attorneys. By the time court ends today, the case could essentially be over.
Federal Court Rejects Transfer Motion
Last Thursday, just before the 4th of July weekend began, Donald Sterling filed a "notice of removal" seeking to transfer this case to federal court. Donald's argument was that (1) Shelly Sterling's team of attorneys and doctors had violated the federal medical privacy statute (HIPAA) by tricking him into medical evaluations and publicly disclosing the results in her state court petition to confirm the finding of mental incapacity and (2) only the federal court, not the state court, had jurisdiction over that violation. When the parties appeared before Judge Levanas in state court yesterday morning for the scheduled beginning of trial, the entire case was delayed to await a ruling from the federal court whether it would grant the transfer motion.
At first, it appeared that Donald Sterling's tactic might impose a considerable delay on the case. No federal judge had been assigned to consider Sterling's papers and no hearing had been scheduled as of noon. It seemed possible that simple logistics would prevent the federal court from acting quickly.
At mid-day, the federal court announced that the Sterling case had been assigned to Judge George Wu. Judge Wu immediately informed the parties that he would not need to hear oral argument on the transfer motion. Within three hours, he issued his ruling that rejected Donald Sterling's transfer motion. As I had predicted, Judge Wu held that the state court had jurisdiction to consider HIPAA violations. Judge Wu further held that because the federal court had no jurisdiction to consider the case, because it is a probate matter which federal courts are barred from hearing.
Donald Sterling Fails To Appear In Court To Testify
The case returned to Judge Levanas' court for opening statements at around 2:30 pm PDT. Shelly Sterling's argument is that (1) Donald Sterling was properly certified to be suffering from "mental incapacity" by two doctors who specialize in making that determination, (2) Donald Sterling was automatically disqualified from serving as a trustee of the Sterling Family Trust as soon as he was certified as suffering from "mental incapacity", (3) Shelly Sterling became the sole trustee, (4) Shelly Sterling had the authority as the sole trustee to sell the Los Angeles Clippers to Steve Ballmer for $2 billion and (5) even if Donald Sterling revoked the Sterling Family Trust after Shelly Sterling entered a binding agreement to sell the team, the sale must be completed as part of winding down the Trust. Donald Sterling's argument is that (1) the certifications of "mental incapacity" are invalid because Donald Sterling was tricked into participating in the examinations, (2) the certifications are invalid because the examination process was tainted and (3) even if Shelly Sterling initially had the power to agree to sell the team, the sale cannot be completed because Donald Sterling has revoked the Trust.
Shelly Sterling's attorneys had subpoenaed Donald to appear as a witness, but he was not present in court. When Shelly's attorney saw the "empty chair", he called Donald as his first witness. It turned out that Donald Sterling not only was not in the courtroom, he was not available to testify.
Donald's attorneys contested whether he had properly been served, but Judge Levanas was clearly irked at Donald Sterling's refusal to appear. Since Judge Levanas will have the sole discretion to determine the outcome in this case, it seems highly counterproductive to antagonize him in this manner. Judge Levanas secured a commitment from Donald Sterling's attorneys that he would appear in court at 2:30 pm PDT today, after the cross-examination of Dr. Platzer concludes.
I expect that when Donald Sterling testifies, he will have few good answers to explain his behavior over the last two months since the public disclosure of the Stiviano audio tapes. For example, he will likely be questioned in detailed about the raving voice mail messages that he left for Dr. Platzer and Dr. Spar, the two doctors who certified to his mental incapacity. These calls paint a vivid picture of a man totally out of control.
Dr. Platzer's Devastating Testimony
Dr. Meril Platzer was the first witness to actually testify. She is a neurologist who specializes in Alzheimer's Dementia. She examined Donald Sterling on May 19, 2014 and certified that he suffered from mental incapacity that rendered him unfit to serve as a trustee of the Sterling Family Trust. She made this certification on the basis of her examination and the PET scan images taken on May 16, 2014.
Donald Sterling attempted to preclude Dr. Platzer from testifying by arguing that her examination was the "fruit of the poisonous tree." According to Donald Sterling, Shelly Sterling tricked him into by examined by Dr. Platzer by failing to inform him that the purpose of the examination was to obtain a finding of mental incapacity to disqualify him from continuing to serve as a trustee of the Sterling Family Trust. Judge Levanas rejected Donald's request to bar the medical testimony, as would be expected in case where he is serving as the sole fact-finder. He will hear the testimony and later decide what weight, if any, to give to the testimony.
The most damaging portion of Dr. Platzer's testimony was her account of the conclusion of her examination. She testified that she ended the session by informing Donald and Shelly Sterling, "It looks like he has Alzheimer's." Donald Sterling's response to this devastating news, according to Dr. Platzer, was not to ask any questions about this diagnosis. Instead, he simply said, "I'm hungry. I want to eat."
Bottom Line
Given his extremely poor public performances over the last two months, I expect that Donald Sterling will be an extremely self-destructive witness today. By the close of today's court session, I expect that Judge Levanas will have all of the evidence he needs to rule in Shelly Sterling's favor.