Petition to stop Donald Sterling from harassing, intimidating witnesses

8/12/2019 Petition to stop Donald Sterling from harassing, intimidating witnesses

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EX PARTE APPLICATION TO ENJOIN WITNESS AND COUNSEL INTIMIDATION

BERTRAM FIELDS (SBN 024199)[email protected] ODONNELL (SBN 081298)[email protected] M. STERN (SBN 126409)[email protected] J. MOSS (SBN 190625)[email protected] GLUSKER FIELDS CLAMAN &MACHTINGER LLP1900 Avenue of the Stars, 21st FloorLos Angeles, California 90067-4590Telephone: 310.553.3610Fax: 310.553.0687

Attorneys for TrusteeROCHELLE H. STERLING

SUPERIOR COURT OF THE STATE OF CALIFORNIACOUNTY OF LOS ANGELES

In the Matter of

THE STERLING FAMILYTRUST.

Case No. BP 152858

EX PARTE APPLICATION TO ENJOINDONALD T. STERLING AND HISCOUNSEL FROM INTIMIDATION OFWITNESSES AND COUNSEL

[C.C.P. 525, 526, 527; Cal. Rule of Court3.1200 et seq.]

[[PROPOSED] ORDER ANDDECLARATIONS OF MERIL SUEPLATZER, M.D., JAMES EDWARD SPAR,M.D., PIERCE ODONNELL AND AARON J.MOSS FILED CONCURRENTLYHEREWITH]

Date: June 19, 2014Time: 8:30 a.m.

Dept.: 5 (Room 260)
mailto:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]


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EX PARTE APPLICATION

TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD:

PLEASE TAKE NOTICE THAT Greenberg Glusker Fields Claman & Machtinger,

LLP (Greenberg Glusker), counsel for Petitioner Rochelle H. Sterling (Petitioner), will

appear on June 19, 2014, at 8:30 a.m. in Department 5 of the above-entitled court, located at 111

N. Hill St., Los Angeles, California, and apply, ex parte, for an Order enjoining Donald T.

Sterling (Donald) and his counsel from: (1) directly or indirectly threatening, harassing and/or

intimidating any trial witness for Petitioner, including but not limited to Drs. James Edward Spar,

Meril S. Platzer and Stephen L. Read; and (2) directly or indirectly threatening, harassing and/or

intimidating Pierce ODonnell or any other lawyer or employee of the Greenberg Glusker law

firm. This ex parteapplication is made pursuant to California Code of Civil Procedure 525,

526, and 527 et seq. and California Rule of Court 3.1200 et seq.

Trial on this matter is currently set for July 7, 2014. Good cause exists for the Order

based upon the following:

1. Petitioners counsel has learned that Donald left threatening voicemail messageslast week for Dr. James Edward Spar and Dr. Meril S. Platzer, the two doctors who recently

examined Donald and certified that he was incapacitated. On Monday, June 9, 2014, Donald

menacingly warned Dr. Platzer that Im gonna see that you lose your license and that Im

going to sue you for a large sum, I guarantee you. He then left a profanity-laden message for

Dr. Spar threatening to have you lose your license and get you fired, telling Dr. Spar to have

your insurance company call me, and stating Ill show you what I think of you when I see you

in court! The next day, Donalds counsel Bobby Samini followed up with a letter to each of

these doctors, accusing them of being part of a conspiracy, and threatening them with litigation

seeking damages for your illegal conduct. Mr. Samini demanded that the doctors stop

communicating with anyone other than Donald about Donalds medical condition,

notwithstanding that this would prevent them from testifying as witnesses in this case. Moreover,

Mr. Samini made these threats despite being well aware that Donald had explicitly waivedall

doctor-patient confidentiality and privacy in connection with his mental evaluation. These are


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clear-cut attempts to intimidate the key witnesses in this case and dissuade them from testifying

truthfully.

2. On June 9, Donald also called Petitioners counsel, Pierce ODonnell, withMr. Samini on the line. On that call, Donald threatened to sue everyone, including

Mr. ODonnell personally, and vowed he was going to spend whatever money he has to litigate

just to make Mr. ODonnells life miserable. Amidst a slew of expletives directed at

Mr. ODonnell, Donald shouted I am going to take you out ODonnell! which Mr. ODonnell

understood to mean that Mr. Sterling would kill him or have him killed.

3. With the trial in this case scheduled to begin in less than three weeks, and in orderto preserve the integrity of the judicial process and ensure a fair trial, Petitioner respectfully

requests that the Court address this matter on an ex partebasis and enjoin Donald and his counsel

from: (1) directly or indirectly threatening, harassing and/or intimidating any trial witness for

Petitioner, including but not limited to Drs. James Edward Spar, Meril S. Platzer and Stephen

Read; and (2) directly or indirectly threatening, harassing and/or intimidating Pierce ODonnell or

any other lawyer or employee of the Greenberg Glusker law firm.

Pursuant to Rule of Court 3.1203, and as set forth in the accompanying Declaration of

Aaron J. Moss (Moss Decl.), Petitioners counsel provided both telephonic and written notice

of this application to counsel for Donald T. Sterling prior to 10:00 a.m. on Wednesday, June 18,

2014:

Maxwell M. Blecher, Esq.Blecher Collins Pepperman & Joye515 South Figueroa Street, Suite 1750Los Angeles, CA 90071(213) [email protected]

Bobby Samini, Esq.Samini Scheinberg, P.C.949 South Coast Drive, Suite 420Costa Mesa, CA 92626(949) [email protected]

SeeMoss Decl., 7, Exh. 15. Counsel for interested party Steven A. Ballmer waived notice. Id.,


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MEMORANDUM OF POINTS AND AUTHORITIES

I. INTRODUCTIONDesperate to regain his position as a Trustee of the Sterling Family Trust (the Trust),

Donald T. Sterling (Donald) and his attorney have resorted to intimidating doctors who will be

key witnesses in this proceeding, which will establish that Donalds removal as a Trustee

complied with the provisions of the Trust. Last week, Donald and his counsel sent threatening

voicemail messages and letters to the physicians who examined Donald and certified that he was

incapacitated. These are the very witnesses whose testimony will be used by Petitioner Rochelle

H. Sterling (Petitioner) to validate Donalds removal as a Trustee of the Trust and to confirm

the $2 Billion sale of the Los Angeles Clippers basketball team. A more direct assault on the

integrity of the judicial system is difficult to imagine.

On Monday, June 9, 2014, Donald left a voicemail message for Dr. Meril Platzer in which

he accused her of being involved in a conspiracy to find that [he] was incompetent and

promised that Im gonna see that you lose your license . . . . Im going to sue you for a large

sum, I guarantee you. Minutes later, Donald left a voicemail for Dr. James Spar. He called him

a stupid fucking doctor, and threatened to have you lose your license and get you fired. He

told Dr. Spar to have your lawyer and your insurance company call me, and stated Ill show

you what I think of you when I see you in court! Audio recordings and written transcripts of

these voicemails are attached as Exhibits 1 and 2 (Dr. Platzer) and Exhibits 4 and 5 (Dr. Spar) to

the concurrently filed declarations.

Also on June 9, Donald telephoned Petitioners counsel, Pierce ODonnell. Among his

statements in a profanity-laden tirade, Donald shouted I am going to take you out ODonnell!

which Mr. ODonnell understood to mean that Mr. Sterling would kill him or have him killed.

Declaration of Pierce ODonnell (ODonnell Decl.), 9.

This campaign of intimidation is not limited to Donald, but has been joined by his

counsel, Bobby Samini. Mr. Samini was on the phone during Donalds June 9 call to

Mr. ODonnell. Then, on June 10, 2014, the day after Donald made his threatening phone calls to

the physicians who deemed him to be incapacitated, Mr. Samini sent letters to each of these


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doctors. See Exh. 3 (letter to Dr. Platzer) and Exh. 6 (letter to Dr. Spar). In those letters,

Mr. Samini accused Drs. Spar and Platzer of committing interference with prospective economic

advantage as part of a conspiracy and threatened them with litigation seeking damages for your

illegal conduct. Id. Mr. Samini also instructed both doctors to have no further communication

with anyone concerning Mr. Sterlings medical condition . . . without his prior written consent.

Id. As discussed below, Mr. Saminis letters ignored that Donald had explicitly waived, in

writing, any applicable doctor-patient privilege or confidentiality expectations in connection with

the medical evaluations relating to his service as a Trustee of the Trust.

With the July 7, 2014, trial date in this matter less than three weeks away, Petitioner seeks

the ex parteassistance of this Court to prevent such improper tactics in this proceeding. Had

Donalds threats been made a day later, after this proceeding had been instituted, they would have

been a textbook example of criminal witness intimidation. SeePenal Code 136.1 (prohibiting

anyone from preventing or attempting to prevent or dissuade any witness from attending or giving

testimony at any trial or proceeding). Donald and his lawyer instructed Drs. Spar and Platzer not

to say anything about Donalds condition to anyone besides Donald an instruction which, if

followed, would obviously prevent them from preparing for or participating in the upcoming trial

on this matter. These demands were backed up with threats of lawsuits and the loss of jobs and

professional licenses and were clearly designed to dissuade the doctors from testifying or to

recant their previous evaluations of Donald.

This Court should exercise its broad inherent powers to protect the affected individuals

and the integrity of the judicial process. Donald and his lawyers should be ordered to refrain

from harassing, threatening and/or intimidating Petitioners witnesses, including Drs. Spar,

Platzer and Read. In addition, the Court should order Donald to refrain from harassing,

threatening, and/or intimidating Pierce ODonnell or any lawyer or employee of the Greenberg

Glusker law firm.


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II. BACKGROUND FACTSA. Relevant Provisions of the TrustDoctors Spar, Platzer and Read are the key witnesses in this case, which concerns the

propriety of Donalds removal as a Trustee of the Trust. Paragraph 7.5.c. of the Trust provides:

Any individual who is deemed incapacitated, as defined inParagraph 10.24., shall cease to serve as a Trustee of all trustsadministered under this document. Each individual who agrees toserve as a Trustee of any trust administered under this document(A) shall cooperate in any examination reasonably appropriate tocarry out the provisions of this Paragraph 7.5.c., (B) waives thedoctor-patient and/or psychiatrist-patient privilege with respect tothe results of such examination, and (C) shall allow a Co-Trusteeor the Current Beneficiaries of the trust to review the individualsindividually identifiable health information or other medicalrecords, waiving any privacy rightsgoverned by the Health

Insurance Portability and Accountability Act of 1996, 42 U.S.C.1320d (HIPAA), and the regulations thereunder, including 45C.F.R. 160-164, to the extent required to implement thisParagraph 7.5.c. An individuals obligation to comply with theprovisions of this Paragraph 7.5.c. is specifically enforceable.

Exh. 8, 7.5.c. (emphasis added).

Paragraph 10.24. defines incapacity, and derivations thereof, and provides that [a]n

individual shall be deemed to be incapacitated if . . .two licensed physicianswho, as a regular

part of their practice are called upon to determine the capacity of others, and neither of whom is

related by blood or marriage to any Trustee or beneficiary, examine the individual and certify in

writing that the individual is incapacitated. Exh. 9 (emphasis added). Paragraph 7.5.c. of the

Trust, quoted above, includes language waiving an individual Trustees privilege and privacy

rights for purposes of determining whether the individual is incapacitated and ceases to serve as a

Trustee. Exh. 8. When the Trust was restated on December 18, 2013, Donald and Petitioner both

signed the Acceptance by Trustee, which expressly acknowledges this waiver. Exh. 10.1

1The Acceptance By Trustee states, The undersigned hereby accept the office of Trustee andagree to serve in accordance with the terms and conditions of service as set forth in thisdocument,specifically including those terms and conditions of service imposed pursuant toParagraph 7.5.c. Exh. 10 (emphasis added).


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B. Determination of Donalds IncapacityDonald, who is 80 years old, was examined by Dr. Meril S. Platzer on May 19, 2014, and

by Dr. James Edward Spar on May 22, 2014. Declaration of Dr. Meril Sue Platzer, M.D.

(Platzer Decl.) at 3; Declaration of Dr. James Edward Spar, M.D. (Spar Decl.) at 3. Both

Dr. Platzer and Dr. Spar are licensed physicians who, as a regular part of their practice, are called

upon to determine the capacity of others, and both Dr. Platzer and Dr. Spar are board-certified by

the American Board of Psychiatry and Neurology. Platzer Decl., 2-3; Spar Decl., 2.

Following their examinations of Donald, both Dr. Platzer and Dr. Spar certified in writing

that Donald was incapable of carrying out the duties as a Trustee of the Trust. Exh. 12 (Dr.

Platzer certification); Exh. 13 (Dr. Spar certification). Dr. Stephen L. Read is also board-certified

by the American Board of Psychiatry and Neurology and specializes in geriatric psychiatry and

has frequently been appointed by courts to determine capacity. Dr. Read has confirmed the

methodology and conclusions of Drs. Spar and Platzer. Exh. 14.

Pursuant to Paragraph 7.5.c. of the Trust, Donald ceased serving as a Trustee of the Trust

on May 29, 2014, when the second of the two licensed physicians written certifications of his

incapacity was issued and received by Petitioner. Exh. 8, 7.5.c. Petitioner, through her counsel,

promptly delivered notice of Donalds removal as a Trustee of the Trust to Donald, through his

counsel, on May 29, 2014 (the May 29 Notice). Exh. 7. The May 29 Notice, which included a

full copy of the Trust, specifically identified Drs. Spar and Platzer as having certified that Donald

was incapable of carrying out his duties as Trustee of the Trust. Id.

C. Donalds Attempts to Intimidate the Testifying DoctorsOn Monday, June 9, 2014, Donald left a threatening voicemail for Dr. Platzer. Exhs. 1, 2.

Introducing himself as Donald Sterling, attorney, Donald stated that Dr. Platzer was nothing

but a fraud and a liar and a cheat. Id. He said Im going to see that you lose your license and


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Im suing you for conspiracy, so have your lawyer call me . . . . Im going to sue you for a large

sum, I guarantee you.2 Exhs. 1, 2.

Minutes later, Donald left a similar voicemail for Dr. Spar. Donald began the message by

stating Im going to leave my name, Donald Sterling . . . and Im going to have you lose your

license. Exhs. 4, 5. Donald then accused the doctor of participating in a conspiracy and

instructed the doctor to have your lawyer and your insurance company call me. Id. Donald

also threatened to get you fired . . . because youre nothing but a tramp. Id. Finally, Donald

stated Ill show you what I think of you when I see you in court. Have your insurance company

call me. My name is Donald Sterling in case youve forgotten. Id.

On June 10, 2014, Donalds counsel, Bobby Samini, sent letters to Drs. Spar and Platzer

(Exhs. 3, 6), in which he instructed them to have no further communication with anyone

concerning Mr. Sterlings medical condition . . .without his prior written consent. Mr. Saminis

letters also alleged that Drs. Spar and Platzer are part of a conspiracy, and threatened them with

litigation seeking damages for your illegal conduct. Id. Mr. Saminis letters ignore that Donald

waived any applicable doctor-patient privilege or confidentiality pursuant to Paragraph 7.5.c. of

the Trust, a provision that Donald specifically acknowledged in a signed writing, and a copy of

which Petitioners counsel had provided to Donalds counsel Maxwell Blecher over a week

earlier as part of the May 29 Notice. Exhs. 7, 8. Furthermore, the daybeforeMr. Samini sent his

letters to Drs. Spar and Platzer accusing them of breaching confidentiality, Mr. ODonnell had

sent Mr. Samini an email informing him that Donald had expressly waived any doctor-patient

privilege and confidentiality under Paragraph 7.5.c. of the Trust and that Donalds signed

acceptance of the Trust included an agreement to be subject to the provisions of Paragraph 7.5.c.

Exh. 11. Indeed, Mr. ODonnells email was sent in response to Mr. Saminis specific demand

that Petitioner provide evidence of any written consent provided by Donald Sterling which

would allow the release of his medical records to your firm (or any other third party.) Exh. 11.

2The Court should note that a second persons voice can be heard in Donalds voicemail toDr. Platzer. While the identity of that person is unknown, he or she appears to be promptingDonald.


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D. Donalds Attempt to Intimidate Petitioners CounselOn Monday June 9, Donald Sterling called Petitioners counsel, Pierce ODonnell, at his

office, with Mr. Samini on the line. ODonnell Decl., 6. Donald shouted profanities at

Mr. ODonnell before screaming, I am going to take you out, ODonnell! Id. at 7-9.

Mr. ODonnell understood Donalds words to mean that Donald threatened to kill him or have

him killed. Id. at 9.

III. ARGUMENTA. Justice Requires that this Court Enjoin Donald and his Attorneys from any

Further Attempts to Threaten, Intimidate or Influence the Testimony of

Witnesses.

The harassment or intimidation of witnesses harms members of the public and threatens

the integrity of the judicial process. Donald and Mr. Saminis improper tactics demand swift and

decisive action by this Court. Donalds phone calls and Mr. Saminis letters were clearly

intended to harass and intimidate Drs. Spar and Platzer (as well as Mr. ODonnell). It is clear

from Petitioners initial Ex Parte Petition filed on June 11 that Drs. Spar and Platzer will be key

witnesses in this proceeding. By instructing Drs. Spar and Platzer to have no further

communication with anyone concerning Mr. Sterlings medical condition, (Exhs. 3, 6) Donald

and Mr. Samini unambiguously sought to preclude those physicians from preparing for trial with

the assistance of either their own counsel or Petitioners counsel. The clear implication of

Donalds and Mr. Saminis communications is that, in order to avoid the wrath of a litigious

billionaire, Drs. Spar and Platzer should either not testify at all, or should testify in a manner

beneficial to Donald. This is a patent attempt to preclude Petitioner from carrying out her duties

under Probate Code 15622, 16000, 16007 and 16013(b) and from establishing on July 7 that all

proper procedures were followed in connection with the removal of Donald as a Trustee of the

Trust.

In addition to threatening testifying witnesses, Donald threatened to kill Mr. ODonnell, or

have him killed. ODonnell Decl., 9. Regardless of whether Donalds threat to take out


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Mr. ODonnell was meant in earnest, it cannot be doubted that Donald has both the means and the

stature to arrange for an act of violence. Given the extremity of Donalds recent conduct, his

threat is a serious matter and should be treated as serious by this Court.

Threatening and/or intimidating a witness is a crime. Penal Code 136.1 makes it illegal

where a person knowingly or maliciously prevents or dissuades [or attempts to prevent or

dissuade] any witness or victim from attending or giving testimony at any trial, proceeding, or

inquiry authorized by law. Moreover, California law is clear that [i]f the defendants actions or

statements are ambiguous, but reasonably may be interpreted as intending to achieve the future

consequence of dissuading the witness from testifying, the offense has been committed. People

v. Wahidi(2013) 222 Cal.App.4th 802, 806, citingPeople v. Ford(1983) 145 Cal.App.3d 985,

989-990.3 Furthermore, where a member of the California bar participates in dissuading a

witness from testifying at a civil trial, he or she commits a violation of Penal Code 136.1. See

Holmes, 145 Cal.App.3d at 942-43.

This Court has broad discretion to fashion a remedy to prevent Donald and his counsel

from attempting to compromise the fairness of the July 7 trial. Code of Civil Procedure (CCP)

526 allows for an injunction when it appears by [] affidavits that the commission or

continuance of some act during the litigation would produce . . . great or irreparable injury to a

party to the action or where the obligation arises from a trust. CCP 526(a)(2). CCP 527

allows for a preliminary injunction where affidavits show that sufficient grounds exist therefor.

A preliminary injunction can be granted absent a noticed motion where [i]t appears from facts

shown by affidavit [] that great or irreparable injury will result to the applicant before the matter

can be heard on notice. CCP 527.

Moreover, courts have inherent power to exercise reasonable control over all

proceedings connected with pending litigation . . . in order to insure the orderly administration of

justice. Rutherford v. Owens-Illinois, Inc. (2007) 16 Cal.4th 953, 967. See alsoCCP 177

3 This statute applies where a party attempts to dissuade a witness from offering testimony in acivil proceeding. See Penal Code136(2)(ii), (iv) & (v); seealso In re Holmes(1983) 145Cal.App.3d 934, 937, 942-43.


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(Every judicial officer shall have power to preserve and enforce order. . . in proceedings before

him . . . .); Probate Code 17001. This inherent authority allows courts to fashion remedies as

necessary to protect litigants rights. Slesinger v. Walt Disney Co.(2007) 155 Cal.App.4th 736,

762 (finding that where a partys deliberate and egregious misconduct in the course of litigation

renders sanction short of dismissal inadequate to protect the fairness of trial, California courts

necessarily have the power to preserve their integrity by dismissing the action); see alsoBd. of

Supervisors v. Superior Court(1994) 23 Cal.App.4th 830, 848; Peat, Marwick, Mitchell & Co. v.

Superior Court(1988) 200 Cal.App.3d 272, 287-289 (affirming order precluding evidence in

order to preserve the integrity of the judicial process where one partys interference with a third

party witness was an abuse of the litigation process).

The attempts to influence Drs. Spar and Platzer by Donald and his counsel threaten great,

irreparable and imminent injury to Petitioners claims. CCP 526, 527. If this conduct is not

immediately and decisively redressed, Drs. Spar and Platzer, along with Mr. ODonnell, will

continue to live in fear of the repercussions. Donald and Mr. Samini have threatened the careers

and livelihoods of Drs. Spar and Platzer. As set forth in her declaration, Dr. Platzer understands

the recent communications of Donald and Mr. Samini as an attempt to bully her into changing

my opinion regarding Mr. Sterlings incapacity. Platzer Decl., 6. Dr. Spar likewise believes

these communications were for the purpose of trying to get me to recant or withdraw my

conclusions regarding Mr. Sterlings mental state. Spar Decl., 8. Mr. ODonnell understands

Donalds threat to take him out as meaning that Donald was going to kill him or have him

killed. ODonnell Decl., 9. Such abuse must be stopped.

IV. CONCLUSIONThe Court should do everything in its power to ensure that Drs. Spar and Platzer,

Mr. ODonnell, and all of the participants at the July 7 trial may prepare for and testify at trial

without any concern for their lives or livelihoods.

WHEREFORE Petitioner respectfully requests an Order:

1. Enjoining Donald T. Sterling and his counsel from directly or indirectly


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Documents

Petition to stop Donald Sterling from harassing, intimidating witnesses