Contrary to what you may have read, Monday's trial is NOT about Donald Sterling's mental capacity, says lawyer Mitchell Epner.
Despite what you may have read, the Donald Sterling trial that is scheduled to start on Monday in Los Angeles will not determine Donald Sterling's mental competence. Instead, there will be two issues determined:
1. Did Shelly Sterling properly comply with the terms of the Sterling Family Trust in having Donald removed as a co-trustee, or was Donald defrauded by Shelly and/or two doctors who examined him and found him to be mentally incapacitated?
2. After Donald exercised his right to revoke the trust agreement on June 9, did Shelly have the legal right to go ahead with the sale of the Clippers to billionaire former Microsoft CEO Steve Ballmer?
On Thursday, Donald Sterling filed a desperate, last-minute motion to stop the trial altogether. Apparently recognizing that the trial would confirm that his removal as a trustee of the Sterling Family Trust conformed to the required process, he filed a "Notice of Removal," seeking to move the case to federal court and claiming that only a federal court could address whether the public disclosure of the mental incapacity findings rendered by two physicians violaed HIPAA, the federal medical privacy law.
This latest tactic is virtually certain to fail. First, a private invidual does not have the right to sue for violations of HIPAA in federal court. The Ninth Circuit Court of Appeals defintively ruled in 2009 (in a case called Webb v. Smart Document Solutions) that "HIPAA itself provides no private right of action." Second, his contention that only a federal court, and not the Los Angeles probate court, can adjudicate whether his HIPAA rights have been violated is simply wrong. In fact, California state courts have frequently determined whether California state and common law rights were violated by an alleged HIPAA violation.
Why has Donald Sterling filed this meritless motion? He wants delay, in an effort to prevent the sale of the Clippers from being completed by September 15.
As to why there was confusion that Monday's hearing was about his mental competency, apparently, before a June 30 hearing involving the lawyers for Donald Sterling, Shelly Sterling and former Microsoft CEO Steve Ballmer about what would be addressed at the July 7 trial, someone leaked conclusions of Donald Sterling's paid expert to CNN. The expert, Dr. Jeffrey Cummings, apparently concluded that Sterling does not suffer from dementia, although he does have "mild cognitive impairment." This news was trumpeted throughout the day with headlines reading "New Doctor Declares Los Angeles Clippers Owner Donald Sterling Mentally Fit."
At the June 30 hearing, Donald Sterling's attorneys asked Judge Michael Levanas to delay the trial from its scheduled start on July 7 in order to allow Dr. Cummings to return from a European trip. Judge Levanas was not willing to deviate from his calendar to accommodate Dr. Cummings' travel plans. Instead, the Judge ordered that Dr. Cummings' testimony could be taken by videotaped deposition. If necessary, Judge Levanas was prepared to have Dr. Cummings supplement his testimony with a live appearance on July 21. By agreeing to take the testimony of Dr. Cummings, Judge Levanas protected his record from an argument on appeal that he ignored relevant medical evidence.
Shortly after Judge Levanas indicated that he would not delay the trial to allow Dr. Cummings to attend -- and having generated global headlines that Dr. Cummings found Sterling mentally fit - Donald Sterling's legal team agreed to withdraw the question of his mental competence from the trial. There would not be a battle of the experts. Judge Levanas would not be required to make a determination of whether Donald Sterling is mentally competent.
This was a wise tactical decision by Donald Sterling's attorneys for several reasons:
1. The Sterling Family Trust documents do not provide for a judge to restore an individual as a trustee if he is found to be competent after he was initially removed based upon a finding of mental incapacity by two qualified physicians. At the last hearing, Judge Levanas had questioned whether Dr. Cummings' testimony had any relevance.
2. In order to make the argument that Dr. Cummings' testimony was relevant, Donald Sterling's legal team was forced to argue that they inadvertently overlooked the removal in December 2013 of the provision in the Sterling Family Trust that authorized an individual removed for mental incapacity to subsequently be restored on a finding of mental capacity.
3. If Sterling's capacity was to be adjudicated, Judge Levanas likely would have required Donald Sterling to testify live in open court. Sterling's legal team has to understand that he is a loose cannon who could destroy his own case and (what remains of) his dignity with a single inopportune comment.
The remaining issues are technical in nature. They revolve around whether Shelly Sterling has the authority to sell the team, not whether Donald Sterling is a raving madman.
The first issue that Judge Levanas will determine is whether Shelly Sterling and her doctors complied with the terms of the Sterling Family Trust in declaring him "mental incapacitated." In their papers, Sterling's lawyers raised a plethora of procedural problems. They allege:
1. Shelly failed to give Donald notice of intent to conduct mental examinations.
2. Shelly failed to disclose the purpose of the mental examinations.
3.The doctors failed to "certify" Donald's mental incapacity.
The papers weave a series of technical arguments with salacious accusations that one of the doctors plied Donald Sterling with alcohol. Donald Sterling's team will have the opportunity at trial to attack the credibility of the doctors and Shelly Sterling without having to put forward their own expert.
I strongly expect that Judge Levanas will reject Donald Sterling's arguments. I expect he will reject Donald Sterling's motion to remove the case to federal court and find that the two highly-credentialed physicians hired by Shelly Sterling properly certified his mental incapacity. I also expect that Judge Levanas will reject Donald Sterling's argument that Shelly Sterling engaged in a secret attack on his mental capacity since (1) the MRI was conducted on May 16, (2) the first physician examined Donald Sterling on May 19 (when he had hired legal counsel), (3) the second physician examined Donald Sterling on May 22, calling him out from a meeting where he was surrounded by his own lawyers and (4) Shelly Sterling announced on national television that she was going to have Donald Sterling evaluated for dementia in the aftermath of the Stiviano tape and the Anderson Cooper interview.
Donald Sterling's final argument is that even if Shelly Sterling was within her authority to sign an agreement to sell the team for the trust on May 30, the deal cannot close because he revoked the trust on June 9.
Donald Sterling's problem in making this argument is that, if Shelly Sterling is the sole trustee of the Sterling Family Trust, she is entitled to use her discretion to preserve the trust's assets in winding it down. She would be fully justified to contend that the Ballmer sale must be executed to avoid ruinous consequences. (1) Ballmer would sue for breach of contract, (2) Players, coaches, sponsors and fans would flee,(3)The NBA would re-animate the process to terminate the Sterlings' ownership of the Los Angeles Clippers, and (4) if, by some miracle, the NBA did not terminate the franchise, it would not be worth anywhere near the $2 billion that Ballmer agreed to pay.
I expect that Judge Levanas will act quickly to confirm Shelly Sterling's authority to sell the team.
Commentary by Mitchell Epner, an attorney specializing in white-collar crime, sports and entertainment law and intellectual property. He's also a former Assistant United States Attorney in the District of New Jersey. Follow him on Twitter @mitchellepner.