Donald Sterling Raves Like A Madman On Voicemail Of Doctors Who Found Him "Mentally Incapacitated"
Donald Sterling seems bent on destroying his case in advance of the July 7 - 10 hearing on his mental capacity. Over the last two weeks, he has left rambling, raving voicemails [warning: explicit language] threatening the two physicians who certified that Donald Sterling was mentally incapacitated, which triggered Shelly Sterling's right to sell the Los Angeles Clippers without his consent. For good measure, Donald Sterling also threatened to "take out" the lead attorney representing Shelly Sterling. These bizarre ravings provide vivid evidence that Donald Sterling suffers from precisely the sort of mental deficits that constitute mental incapacity under California law.
Donald Sterling Should Be Seeking Discovery From The Physicians, Not Threatening Them
At his mental incapacity hearing, the key question that Judge Levanas will have to decide is whether Donald Sterling suffers from a mental defect that "significantly impairs [his] ability to understand and appreciate the consequences of his actions with regard to the type of act or decision in question.” Under California law, the Court must presume that Donald Sterling has mental capacity, and can find mental incapacity only if the evidence demonstrates certain specific mental defects. Among those defects are:
A lack of "ability to plan, organize, and carry out actions in one’s own rational self-interest"
A lack of "ability to reason logically"
"Severely disorganized thinking"
"Uncontrollable, repetitive or intrusive thoughts"
A lack of "ability to modulate mood andaffect."
"Deficits in this ability may be demonstrated by the presence of a pervasive and persistent or recurrent state of anger"
Donald Sterling's attorneys would want to demonstrate that the two physicians who certified that Donald Sterling suffered from mental incapacity did not have a sufficient basis to reach that conclusion. Donald Sterling's best evidence would be the fact that he was a virtual stranger to both of the doctors who certified that he suffered from mental incapacity. Dr. Merill Sue Platzer - a neurologist specializing in the treatment of Alzheimer's Dementia - met Donald Sterling one time (May 19, 2014) and conducted an examination for the purposes of evaluation, not treatment. The second certifying doctor - Dr. J. Edward Spar, a Professor of Psychology at UCLA - also met Donald Sterling on only one occasion (May 22, 2014) and also conducted an examination for the purposes of evaluation, not treatment.
In advance of the July 7 - 10 hearing, Donald Sterling's attorneys would have wanted to interview - or take the sworn depositions of - the two doctors in order to lock them into their stories. Sterling's attorneys would have wanted to have each doctor describe the limited nature of their examination, the short duration of their encounter, the diagnostic tools that were not utilized during the examination and, perhaps most importantly, that determinations of capacity are best made based upon prolonged interactions with the individual.
The standard operating procedure is to send an self-serving letter to each doctor, recounting the fact that the doctor had examined Donald Sterling at the request of Shelly Sterling and her legal team and requesting the opportunity to interview and/or depose the doctor in advance of the July 7 hearing. If either doctor would not consent to an interview or deposition, Donald Sterling's legal team would have argued that the refusal could only be explained by bias against him. The "gotcha" question is always, "Why are you willing to talk to the other side, but unwilling to talk to my client or his attorneys?"
Donald Sterling's Rant Will Come Back To Haunt Him
Here, Donald Sterling has provided easy answers for all of the tough questions that his attorneys would want to ask Dr. Spar and Dr. Platzer at the hearing:
Why did you refuse to talk with Donald Sterling or his attorneys in advance of this hearing?
Because he was abusive in the 90 second voicemail he left for me, and the similar voicemail message he left the other doctor.
Isn't true that you only examined Donald Sterling on one occasion?
I had the opportunity to review the abusive voicemails that Donald Sterling left me and the other doctor. They confirmed that he (1) has no control over his anger, (2) is easily distracted and loses his train of thought, (3) cannot take actions in his rational self-interest, (4) does not understand the circumstances of this litigation and (5) has uncontrollable and recurrent thoughts.
Weeks Before The Hearing, Judge Levanas Heard Donald Sterling's Ravings
The damage caused by Donald Sterling's raving attacks has already begun. Shelly Sterling's attorneys presented an emergency motion to Judge Levanas today, seeking an order of protection from further threats (or contract) from Donald Sterling or his legal team. These recordings paint a vivid picture that Donald Sterling is out of control, unable to govern himself with simple decorum for even 90 seconds while leaving a voicemail message.
While Donald Sterling's legal team has questioned whether he knew he was being recorded by V. Stiviano, there can be no question that he knew he was being recorded when he left these messages. He left them precisely at the moment that he knew his mental competency was in question and he left them for the people who he knew were going to testify about his competency. The stunning lack of judgment in leaving these messages will make an indelible impression on Judge Levanas, even before he hears the first witness testify.
EDIT: Judge Levanas has denied Shelly Sterling's motion and instructed both sides to "tone down the pre-trial communication." The point of Shelly Sterling's filing, however, was not to get Judge Levanas to enter an order protecting the doctors from Donald Sterling. It was to force Judge Levanas to focus on Donald Sterling's ravings three weeks before the hearing on his competency.
Bottom Line: I Expect Judge Levanas To Find Donald Sterling Incompetent
Before this latest incident, I thought that Donald Sterling had a fighting chance to persuade Judge Levanas that Shelly Sterling had not met her burden to prove him mentally incapacitated. I thought that if (1) Donald Sterling's treating physician came to court and testified that his judgment, based upon years of experience in treating Sterling, was that Donald Sterling was eccentric, but not incompetent, and (2) Donald Sterling testified in a lucid and coherent fashion, the Court would rule in his favor.
This latest incident leads me to expect that the Court will find that Donald Sterling suffers from a mental incapacity that renders him unfit to serve as a trustee of the Sterling Family Trust, which will empower Shelly Sterling to sell the Los Angeles Clippers before the September 15, 2014 deadline.