Sterling v. Sterling 12: It's been fun, guys!

Hello, this is TwistNHook from SBN's Cal site, California Golden Blogs. We've been taking a ponder at the impending Sterling trial for the last few weeks. This is part 12 and here are the other first parts:

Part 1:  The Basics

Part 2:  Mental Capacity And The Law

Part 3:  Shelly Sterling's Filings

Part 4:  June 23 Trial Setting Conference

Part 5:  June 30 Trial Setting Conference

Part 6:  Day 1 of the Trial

Part 7:  Day 2 of the Trial

Part 8:  Day 3 of the Trial

Part 9:  Day 4 of the Trial

Part 10:  Day 5 of the Trial

Part 11:  Day 6 of the Trial

Today was like the end of a movie where everything becomes clear and they reveal all the secrets.  I've been saying for a few days that there was a lot of testimony relating to the valuation of the team and the sales price of the team that did not seem relevant to the two issues outlined by the Judge.  In today's hearing, however, he connected the dots here regarding the sales price by outlining three issues.

*Whether Donald was properly removed from the Sterling Family Trust.

*Whether Shelly can still execute the sale after Donald revoked the trust.

*Whether there is an urgent situation regarding imminent loss of value to the trust. If there is, Levanas can make a ruling under section 1310 (b) in the California probate code approving the sale and making his order essentially appeal-proof.

We've had a lot of testimony about the first one, very little, if no testimony on the second issue, and now we see how the sales price and valuation testimony relates to the third issue.  We've been talking about that "un-appealable order" issue for some time, but never had it connected to actual testimony.  The Judge wanted to see the effects of an appeal staying his Order.  So, all the testimony about Doc Rivers not coaching and the collapse of the sales price and the sponsors all fleeing the team related to whether there is an imminent loss of value to the Trust.

Overall, I would think that Shelly's team was successful in making that argument.  They provided a significant amount of evidence about how this deal with Ballmer is substantially more than could be expected in other circumstances.  They provided a significant amount of evidence about how bad the consequences for the Clippers will be if DTS remains an owner next season.  It was good to get that cleared up.

So, besides that, what else happened today?  Well, you might remember that initially DTS wanted to delay the trial until August for his expert to testify as to the mental capacity of DTS.  The Judge denied that continuance.  During the same time period, the Judge was considering whether to allow testimony as to the mental health of DTS or just allow testimony as to the appropriateness of the medical reports pursuant to the Trust terms.

The Judge said that this could be a trial limited solely to the Trust terms and would be over in 5 minutes.  However, he also said he was troubled about a 2 billion dollar sale being considered without any evidence as to the mental health of DTS.  A hearing was set to consider that issue and the issue briefed.  I guessed that the Judge would want to see the evidence of the mental health and not just limit it to the Trust terms.

However, before that matter could be litigated, both sides stipulated to the evidence on mental health not being included.  I was somewhat perplexed by that.  So was the Judge apparently:

Superior Court Judge Michael Levanas reminded Sterling's lawyers that both sides had agreed not to make Donald Sterling's mental capacity an issue in the trial.

Levanas said he was surprised when the lawyers made that move, and that he would have been interested in hearing about Donald Sterling's mental competency.

SO, I WAS RIGHT ALL ALONG!  Take it away, animated cool chicken!

Other attorneys, you made me look stupid in front of my new friends here at ClipsNation.  Oy!  Either way, I do not know why DTS' team stipulated to that, because it apparently killed them today.

Dr. Jeffrey Cummings

They had Dr. Cummings (back from vacation?) testify, but the Judge refused to hear any testimony as to the mental state of DTS or read his reports:

Given that decision by lawyers, the judge rejected most of Cummings' testimony and refused to receive the psychiatrist's report submitted by the Sterling lawyers.

DTS finally had a witness that provided fairly good testimony for him, but it's unclear how much of it the Judge will actually rely upon.  What did Dr. Cummings say?

The testimony in the trial concluded with Dr. Jeffrey Cummings, an expert on Alzheimer's and dementia, testified on behalf of Donald that he believes the mental evaluations of Donald conducted by two doctors hired by Shelly were improperly done because Shelly was in the room at the time.

"I understand there's a stress between Mr. Sterling and Mrs. Sterling," Cummings testified. "The optimal examination would be conducted with no distractions so that the person being examined could, would be able to concentrate fully on the task at hand.

"The standard of care is that the patient is able to attend fully and completely to the tasks he is being asked to complete."

I'll get to the cross examination in a moment, but let's unpack this first.  Dr. Cummings stated that the reports were improper because Shelly was there and she did not allow him to focus.  He states two different standards, one of which is a ceiling and one of which is a floor.

The ceiling is his "optimal examination."  He states that that would be where there are no distractions.  But this is real life, you don't get the optimal examination in all situations.  I had a case where the elderly man was being taken to a doctor's office for this type of evaluation.  He thought he was going to a fiesta and dressed up in a suit.  When he got there, he became extremely angry and felt that he had been lied to.  This was an unfortunate symptom of his dementia.  The test was not thrown out, because he was mad about not going to a fiesta.  You don't always get optimal situations.

The other issue here is the standard of care, i.e. the floor.  You have to at least have the standard of care.  Dr. Cummings testifies that the standard of care is able to attend fully and completely to the tasks he is being asked to complete.  That does not mean there are absolutely no distractions at all.  That just means that the distractions that may exist do not preclude him from focusing on the tasks at hand.

Dr. Cummings testified that having Shelly there was a distraction.  We can get into that in a moment, but I do not see in any of the news stories if Dr. Cummings testified about anything in specific Shelly was doing that was distracting.  Her mere presence may have created some stress and may have created a distraction, but the standard of care is that she is not precluding him from attending to the tasks.  So, was she yelling at him during the evaluation?  Was she throwing things at him?  Was she talking to him and trying to keep him from answering correctly?  We she practicing the trombone despite her complete and total inability to play the trombone?

I've yet to hear anything in specific there.  I do not think the Judge would require the ceiling as long as the floor is met.  This is if the Judge even relies on this testimony at all.  As noted above, he said it didn't sway him:

"I don't have any idea how this is going to help me make a decision in this case," Levanas said before Cummings was excused from the stand.

Dr. Cummings was also cross-examined by Shelly's attorneys and made some comments that were not helpful for DTS.

On cross-examination, O'Donnell questioned Cummings' statement about "stress."

O'Donnell pointed out that Donald invited Shelly to sit in on both examinations and, before he called her "you pig" the day she testified in this trial, had testified several times himself about how much he loved Shelly.

O'Donnell closed his cross by eliciting an admission from Cummings that under some cases it would be unhelpful - perhaps even induce stress - to inform a patient what the consequences might be if he performed poorly on an examination.

So, this undermines Dr. Cummings' testimony about stress here, because DTS requested that Shelly be there and had previously said he loves her greatly.  While Dr. Cummings did have some information that was finally in DTS' favor, it was undermined on cross and the Judge may not even rely on any of it at all.

Conclusion

We have the closing arguments coming up on Monday at 10 AM.  It appears that DTS' team will continue to argue that this was a giant conspiracy, even though it just seems like a fairly standard Trustee removal process to me.  Shelly's team will argue about the "unappealable" Order, because that part is key.  If Shelly wins here, but the Order is stayed on appeal, it is all meaningless.

Now, DTS did file another lawsuit against pretty much everybody ever.  I just glanced at it quickly.  It appears like another opportunity to muddy the waters.  It is a corporations law complaint that argues the medical evaluations were fraudulent and the revocation of the Trust was appropriate such that he can block the sale.  It is a lot of the same allegations with corporate causes of action thrown in.  I do not know corporate law, so I cannot speak to that.

The purpose, apparently, is to ask for an injunction against the sale, so even if the "unappealable" Order is provided by the Judge in the Probate Trial, they can try to block it with this lawsuit.  In general to obtain an injunction you have to show that you can't "unring the bell."  Let me give you an example.

You may remember that Cal spent years litigating the issue over the upgrade of its football facility.  Although you may vaguely remember this, we lived through that.  I personally had a lot of fun, infiltrating the hippie discussions, climbing into the trees, and being cited for a source on Wikipedia.  What happened there was that the Judge issued a preliminary injunction precluding Cal from doing any construction work on the stadium until all the issues had been fully litigated.  The argument was that if Cal did the construction work during the pendency of the litigation and then it turned out they lost, it was too late.  You can't undo the construction work.  You can't unring the bell.  However, when the final Order was issued after years of litigation, the injunction was dropped as Cal had pretty much won on all counts.  At that time, Cal immediately tore down those trees and started the building process.

If DTS is successful with his civil lawsuit in obtaining an injunction that could potentially block any success from the probate trial.  I have no idea if the civil court would issue the injunction or not.  We'll have to wait and see.

What are your thoughts?  Leave them in the comments and GO BEARS!