Case 2:14-cv GW-AS Document 5 Filed 07/06/14 Page 1 of 21 Page ID #:316

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1 Case :cvgwas Document Filed // Page of Page ID #: ci) NO PIERCE O'DONNELL (SBN ) PODonnel(GreenbergGlusker. corn BERTRAMTIELDS (SBN ) BFields(ggfirrn.com MATTFIIEW N. FALLEY (SBN ) MFaley(GreenbergGusker. corn CAROLINE S. HEINDEL (SBN ) CHeindelGreenbergGlusker.com GREENBERG GLUSKER FIELDS CLAMAN & MACHTINGER LLP Avenue of the Stars, st Floor Los Angeles, California Telephone:.. Fax:.. Attorneys for Trustee ROCHLLE H. STERLING LOEB & LOEB LLP ADAM F. STREISAND (SBN ) AStreisand@loeb.com Santa Monica Boulevard, Suite Los Angeles, California Telephone:.. Fax:. Attorneys for Interested Party Steven A. Bailmer UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA I In the Matter of the Case No. :cv THE STERLING FAMILY TRUST EMERGENCY EXPARTE APPLICATION FOR SUMMARY REMAND [Declaration of Caroline Heindel; tproposedl Order filed concurrently herewith] Date: July, /.

2 Case :cvgwas Document Filed // Page of Page ID #: (j cc) TABLE OF CONTENTS I. Page INTRODUCTION AND SUMMARY OF ARGUMENT... II. RELEVANT FACTS AND PROCEDURAL HISTORY IN THE PROBATEACTION... III. REMOVAL IS IMPROPER BECAUSE THERE IS NO FEDERAL QUESTION JURISDICTION... A. There is No Federal Question Jurisdiction Based on the Face of thepetition... B. Congress has not Provided for Removal of this Case, and Shelly's Claims are not Preempted by Federal Statute... C. There is no Removal Jurisdiction Based on Affirmative Defenses or Potential CrossClaims... IV. REMOVAL IS IMPROPER BECAUSE DONALD IS NOT A DEFENDANT IN THE PROBATE ACTION... V. DONALD HAS WAIVED ANY RIGHT TO REMOVAL THROUGH HIS ACTIVE PARTICIPATION IN THE PROBATE ACTION... VI. THE COURT SHOULD SUMMARILY REMAND THIS ACTION ON AN EX PARTE BASIS ON OR BEFORE JULY OR SHELLY WILL BE DENIED ANY EFFECTIVE RELIEF UPON LATER REMAND... VII. CONCLUSION... I!

3 Case :cvgwas Document Filed // Page of Page ID #: CASES TABLE OF AUTHORITIES Page Acara v. Banks, F.d (th Cir. )... Acosta v. Direct Merch. Bank, F.Supp.d (S.D Cal. )... Balcorta v. TwentiethCentury Fox Film Corp., F.d (th Cir. )... Beneficial National Bank v. Anderson, U.S. ()... Bo v. Lewis, V F.d(thCir. )... Chica,go Title & Trust Co. v. Whitney Stores, Inc., F. Supp. (N.D. Iii. )... Colfin AlCA LLC v. Williams, U.S. Dist. LEXIS (C.D. Cal. )..., Cross v. Kaiser Foundation Hospitals, U.S. Dist. LEXIS (N.D. Cal. )... Federal Nat. Mortj. Ass 'n v. Sandoval, WL (E.D. Cal. )... Gartec v. Joseph Enterprises, Inc., U.S. st. LEXIS (N.D.Cal.)... LV Gaus v. Miles, Inc., F.d (th Cir. )... Kiddie Rides USA, Inc., v. ElektroMobiltechnik GMGH, F. Supp. (C.D. Ill. )... Koklich v. California Dept. of Corrections WL (Efl. Cal. )... Merrell Dow Pharmaceuticals, Inc. v. Thompson, U.S. ()...,, Moore v Permanente Medical Group, F. d (th Cir. Cal. )... Orosco v. Royal Roofing Co., U.S. Dist. LEXIS (N.D. Cal. )... 'U

4 Case :cvgwas Document Filed // Page of Page ID #: cm TABLE OF AUTHORITIES (continued) Page Rath Packing Co. v. Becker, F.d (th Cir. )... Saeilo Machinery, Inc. v. Hirdes Freight, Ltd., AMC (C.D. Cal. ).... Schmidt v. Association of Apartment Owners of Marco Polo Condominium, F. Supp. (D. Ha. )... She man v. Shefman, WL (E.D. MI )..., Takeda v. Northwestern Nat? Life Ins. Co., F.d (th Cir. )... Taylor v. Anderson, U.S. ()... Turner v. Jackson Park Iospital, WL (t Cir. )..., Valles v. Ivy Hill Corp., F.d (th Cir. )... STATUTES U.S.C. section ()... U.S.C. section... U.S.C. section... U.S.C.d... Cal. Probate Code (a)()... OTHER AUTHORITIES Rule of the Federal Rules of Civil Procedure... Fill

5 Case :cvgwas Document Filed // Page of Page ID #: : b TO THE HONORABLE COURT, TO ALL PARTIES, AND TO THEIR ATTORNEYS OF RECORD HEREIN: Petitioner Rochelle H. Sterling ("Shelly") and Interested Party Steven A. Ballmer ("Bailmer") hereby apply on an emergency exparte basis for an Order summarily remanding this Action to the Superior Court of Los Angeles County (the "Probate Court") on July,, without hearing or further briefing, so that an evidentiary hearing previously scheduled to commence on July,, at : a.m. in the Probate Court can commence without further delay. As of the time of filing this emergency application, no judge had yet been assigned to this case. Shelly and Bailmer respectfully request that a judge be immediately assigned to this case so that this application can be considered. This matter was removed to this Court late in the day on July,, the last business day before the scheduled evidentiary hearing, by Donald Sterling ("Donald"), only after Donald's exparte request made to the Probate Court on the morning of July,, to continue the date of the evidentiary hearing was not granted. Donald's bad faith removal is a desperate attempt to scuttle the precedentsetting $ Billion sale of the Los Angeles Clippers. This Application is requested pursuant to Central District of California Local I Rule. Good cause exists for the requested order on the following grounds:. Shelly filed a Petition with the Probate Court on June,, Los Angeles Superior Court Case No. BP, which has been assigned to the Honorable Michael Levanas (the "Probate Action"). In the Probate Action, Shelly seeks an Order (the "Probate Order") confirming that, as Trustee of The Sterling Family Trust, she had the authority to enter into a Binding Term Sheet (the "BTS") to sell the Los Angeles Clippers NBA franchise to a limited liability company owned by Bailmer for $ Billion. Shelly must obtain the Probate Order by July,, in order to ensure that the /.

6 Case :cvgwas Document Filed // Page of Page ID #: I (ID _ c_) transaction closes in a timely manner under the BTS.. On June, the Probate Court set an evidentiary hearing (a bench trial) on the Petition, commencing on July,.. Thereafter, Donald participated in the Probate Action in numerous ways, including filing objections to the Petition and numerous briefs, and unsuccessfully seeking a continuance of the July hearing date on three occasions.. Donald removed this action late in the day on July,, after having unsuccessfully sought a continuance of the July evidentiary hearing that morning.. On its face, the Notice of Removal demonstrates that Shelly's claims in the Petition do not raise a substantial federal question and instead, at most, that Donald may have affirmative defenses that do so.. This matter must be remanded immediately. Unless the evidentiary hearing in the Probate Action commences on July or July, the Probate Order cannot be issued by the July deadline, and as a practical matter Shelly will be denied the relief she seeks without ever having had an opportunity for a hearing on the merits. This Application is based on this Notice and the attached Memorandum of Points and Authorities, the Declaration of Caroline Heindel ("Heindel Decl.") filed concurrently herewith, and all of the Court's files and records in this matter, and on such argument or evidence as may be presented at the hearing on the Motion. On July,, Shelly gave notice to Donald's counsel of record in this matter of her intention to submit this Application seeking emergency summary remand on the evening of July. (Heindel Decl.,.) The name, address and telephone number of counsel for all parties are as follows: I/I /.

7 Case :cvgwas Document Filed // Page of Page ID #: WZ CI) Pierce O'Donnell Attorneys for Petitioner Matthew N. Falley T: GREENBERG GLUSKER FIELDS CLAMAN F: & MACHTINGER LLP E: rnfalley(ggfirrn.com Avenue of the Stars, st Floor Los Angeles, California Bobby Samini SAMINI SCHEINBERG, ic South Coast Drive, Suite Costa Mesa, CA Adam F. Streisand Attorneys for Interested Party LOEB & LOEB LLP Steven A. Balimer Santa Monica Boulevard, Suite T: Los Angeles, California F: E: DATED: July, GREENBERG GLUSKER FIELDS CLAMAN & MACHTINGER LLP By: Is/Matthew N. Falley MATTHEW N. FALLEY Attorneys for Trustee ROCHELLE H. STERLING LOEB & LOEB LLP Attorneys for Donald Sterling T: F: E: By: Is/Adam F. Streisand ADAM F. STREISAND (SBN ) Attorneys for Interested Party STEVEN A. BALLMER /.

8 Case :cvgwas Document Filed // Page of Page ID #: U MEMORANDUM OF POINTS AND AUTHORITIES I I. INTRODUCTION AND SUMMARY OF ARGUMENT Donald Sterling's ("Donald") removal of this case is a transparent scheme designed solely to delay an evidentiary hearing set for : a.m. on Monday, July,, in the Probate Court division (the "Probate Court") of the Los Angeles Superior Court (the "Probate Action"). That hearing relates to a Petition filed by Rochelle H. Sterling ("Shelly"), seeking an Order (the "Probate Order") confirming her power as Trustee of The Sterling Family Trust (the "Trust") to have entered into a Binding Term Sheet (the "BTS") to sell the Los Angeles Clippers NBA franchise (the "Clippers") to Steve Balimer for a recordshattering $ Billion. The Probate Order is needed before July that there can be a timely closing of the sale under the BTS on that date, and the NBA owners can approve the sale at their longscheduled July owners meeting. When Shelly's Petition was filed on June,, the Probate Court recognied the need for a prompt hearing to preserve a valuable Trust asset, cleared time from its impossibly crowded docket, and set the matter on shortened notice for a contested evidentiary hearing from July to July. Donald opposes the sale. Desperate to delay the evidentiary hearing and thus to kill the sale by precluding the relief sought by Shelly in the Probate Action, Donald filed an eleventh hour exparte application for a continuance (his third such request) in the Probate Action on the morning of July. Only when that request failed did Donald seek to achieve the same destructive delay by filing a patently improper Notice of Removal in this Court on the afternoon of July, the last court day before the evidentiary hearing is set to commence. There are at least four independent grounds for an immediate, emergency summary remand to the Probate Court: /.

9 Case :cvgwas Document Filed // Page of Page ID #:. The Notice of Removal fails to identify any federal question presented I on the face of the Petition filed in the Probate Action. Donald's assertion that there is removal jurisdiction is frivolous and sanctionable.. Donald is not a "defendant," but only a beneficiary of the Trust at issue in the Probate Action. He lacks standing to remove.. Donald waived any right to remove by participating extensively in the Probate Action with knowledge of his claimed basis for removal.. This Court should summarily remand this action on an emergency basis, without hearing or opposition, on Monday, July. Any delay in remanding this action to the Probate Court will result in the relief sought in the Probate Action being precluded merely as a result of the delay, and not on the merits. N I II. RELEVANT FACTS AND PROCEDURAL HISTORY IN THE PROBATE ACTION Donald and Shelly, husband and wife, are the Settlors and Beneficiaries of the Trust. On June,, Shelly, as sole Trustee of the Trust, filed an Ex Parte Petition () For Confirmation Of Trustee's Acts And Instructing Trustee And () For Order Directing Trustee Under Probate Code (b) To Prevent Injury Or Loss To Trust ("Petition") with the Probate Court to commence the Probate Action, and served Donald with a copy of the Petition. The specific act at issue in the Petition is Shelly's entering into the BTS for the $ Billion sale of the Clippers to a limited liability company owned by former Microsoft CEO Steven Bailmer. The BTS was signed on May,, and the closing is set to occur before July,. Declaration of Caroline Heindel ("Heindel Decl."), and Ex.. On June, the Probate Court set an evidentiary hearing on the Petition for July,, and ordered that Donald's opposition be filed no later than June,. The Probate Court also set a trialsetting conference for June,. Id., and Ex.. From the time the Petition was filed, Donald has taken numerous /.

10 Case :cvgwas Document Filed // Page of Page ID #: c) [ N ric L) actions in the Probate Action which manifest his intent to have the matter adjudicated by the Probate Court: On June,, Donald served a Statement of Opposition to the Petition, a trial witness list and a motion for continuance of the trial/ evidentiary hearing, based on the claimed unavailability of his retained expert on mental capacity. No continuance was granted. Id., (a). On June,, Donald appeared, through two separate counsel, at the trialsetting conference. The Probate Court instructed the parties to brief various issues, including Donald's request for a continuance, and set a second trialsetting conference for June. Id., (b). On June,, two additional lawyers who specialie in probate associated into the Probate Action on Donald's behalf. Id., (c). On June,, Donald filed a motion to exclude Mr. Bailmer from participating in the Probate Action and a brief addressing issues raised by the Probate Court at the June trialsetting conference. Id., (d). On June, Donald filed a revised declaration of his retained expert on mental capacity in support of his motion for continuance. Id., (e). On June, Donald filed oppositions to Mr. Ballmer's motion to participate in the Probate Action and Shelly's motion regarding the scope of the evidence at the July evidentiary hearing. Donald also served Shelly with a Notice to Appear at Trial. Id., (f). On June, Donald filed three reply briefs in support of () his motion for continuance, () the scope of evidence at the July evidentiary hearing and () his motion to dismiss the Probate Action due to lack of jurisdiction. Id., (g). On June, Donald's four lawyers also appeared at a second trialsetting conference in the Probate Court. Various issues were addressed, including the scope of evidence at the July evidentiary hearing and Donald's request for a continuance. Based on the Court's limitation of the scope of the evidentiary /.

11 Case :cvgwas Document Filed // Page of Page ID #: V ). ti < hearing, the need for testimony by Donald's expert on mental capacity which was the basis for Donald's requested continuance became moot. Donald's counsel then requested a continuance on the new ground that they needed more time to prepare for the evidentiary hearing, which the Probate Court denied. Id., (h). On July, Donald () served a deposition subpoena on one of the doctors who had certified his lack of mental capacity, and () gave notice of an ex parte application to the Probate Court to shorten notice on a motion for judgment on the pleadings, schedule depositions, and continue the evidentiary hearing. Id., (i). On July, the last business day before the evidentiary hearing, Donald made a last ditch effort to obtain a trial continuance by filing an ex parte application with the Probate Court renewing his claim that he needed more time to prepare for trial. Donald also brought an exparte application to take certain depositions. Id., (k) and Exs. and. The Probate Court did not rule on these requests, and a continuance was not granted. The request was set for hearing on the morning of July, at the commencement of the evidentiary hearing. In connection with these various requests to continue the evidentiary hearing, at no time did Donald tell the Probate Court that he was considering removing the Probate Action. Id., (k). On July, Donald also filed and served a lengthy trial brief and Supplemental Objections to Shelly's Petition. Id., (k), Ex.. Prior to the close of business on July, after his third and final attempt at a trial continuance was frustrated, and after three weeks of significant participation in the Probate Action, Donald filed a Notice of Removal in this Court. Id.,J and Ex.. III. REMOVAL IS IMPROPER BECAUSE THERE IS NO FEDERAL QUESTION JURISDICTION The removal statutes are strictly construed against removal jurisdiction. /.

12 Case :cvgwas Document Filed // Page of Page ID #: C C W C rid C) C Boggs v. Lewis, F.d, (th Cir. ) ("This court strictly construes the removal statute against removal jurisdiction"); Takeda v. Northwestern Nat'l Life Ins. Co., F.d, (th Cir. ). Moreover, because of the "strong presumption" against removal jurisdiction, "the defendant always has the burden of establishing that removal is proper." Gai,s v. Miles, Inc., F.d, (th Cir. ). Donald, the beneficiary of the Trust at issue in the Probate Action who removed that action to federal court, has not and cannot meet his heavy burden of establishing that this Court has federal subject matter jurisdiction over Shelly's state law Petition to have the Probate Court issue the Probate Order determining that she has the power, under the Trust's terms and California law, to close the sale of the Clippers based on the allegations of the Petition. That is quintessentially a state court matter to be decided by a state court judge based on state law. A. There is No Federal Ouesti Jurisdiction Based on the Face of the Petiti nfl The presence or absence of federalquestion jurisdiction is governed by the "wellpleaded complaint rule," providing that federal jurisdiction exists only when a federal question is presented on the face of the plaintiffs properly pleaded complaint. Balcorta v. TwentiethCentury Fox Film Corp., F.d, (th Cir. ). Removal jurisdiction is determined solely with respect to the claims asserted by the plaintiff, without regard to potential counterclaims or matters that may be raised in defense. Merrell Dow Pharmaceuticals, Inc. v. Thompson, U.S., () ("A defense that raises a federal question is inadequate to confer federal jurisdiction."); Taylor v. Anderson, U.S., (). In her Petition in the Probate Action, Shelly asserts only a gardenvariety request for confirmation of her acts as Trustee of the Trust under California law. See Cal. Probate Code ; Petition at :. Among other things, she /.

13 Case :cvgwas Document Filed // Page of Page ID #: Qr alleges that, as provided in the Trust, Donald ceased to serve as a CoTrustee of the Trust when two doctors certified that he lacked capacity to serve as a CoTrustee. None of the claims in, or relief requested by, the Petition arises under federal law. obtained by fraud and undue influence. Specifically, Donald claims that Shelly scheduled Donald to be examined in May by two doctors who Shelly "handpicked" and that she "fraudulently misrepresented the purpose of the two examinations in May, and used undue influence on DONALD STERLING to arrange for his appearances at the two examinations... Petitioner engaged in her subterfuge to attempt the removal of DONALD STERLING as cotrustee of the Sterling Family Trust." Notice at. Donald then asserts that there is removal jurisdiction based solely on the following ground: Notice at In his Notice of Removal, Donald asserts that the doctor examinations were In advance of the two examinations of DONALD STERLING in May, petitioner unlawfully authoried the transmission of private and personal medical records of respondent to her handpicked doctors. The unlawful authoriation by ROCHELLE STERLING of the transfer and use of respondent's private and personal medical records violated U.S.C. section () and U.S.C. section.. This is the only alleged basis for removal. In his Notice of Removal, Donald does not assert that a federal question is presented on the face of any of the claims asserted by Shelly in the Petition, let alone attempt to explain how such a question 'Neither of the two cited sections exists. Presumably, Donald is contending that his removal as a cotrustee in some way violated the Health Insurance Portability and Accountability Act ("HIPAA") or the Health Information Technology for Economic and Clinical Health Act ("HITECH"). However, neither HIPAA nor HITECH creates a private right of action, making Donald's reliance on these statutes to confer jurisdiction even more frivolous. See Acara v. Banks, F.d, (th Cir. ) (no HIPPA private right of action); U.S.C. d (attorney general may enforce HITECH violations). /

14 Case :cvgwas Document Filed // Page of Page ID #: U V c is implicated by or necessary to any of the relief she is seeking. B. Congress has not Provided for Removal of this Case, and Shelly's Claims are not Preempted by Federal Statute. The United States Supreme Court has held that a state claim may be removed to federal court in only two circumstances when Congress expressly so provides, such as in the PriceAnderson Act... or when a federal statute wholly displaces the statelaw cause of action through complete preemption. Beneficial National Bank v. Anderson, U.S., () (emphasis added). Donald does not, and cannot, contend that either circumstance is met here. There is no federal law providing for the removal of a probate petition under state law involving whether one cotrustee ceases to serve and the other cotrustee had authority to enter into a contract on behalf of a trust. Nor is there any federal statute suggesting that the relief requested in the probate Petition is preempted. Because Shelly's state law Petition does not depend upon or require the construction of a federal statute, there is no basis for removal jurisdiction. Cf Merrell Dow, U.S., () (fact that state law claim depended on novel question under federal Food Drug and Cosmetic Act did not create federal jurisdiction); Franchise Tax Board, U.S. at (no federal jurisdiction even though the "central issue presented" in the case was the meaning of a federal statute) (see Merrell Dow, U.S. at, explaining Franchise Tax Board). Her Petition will be decided solely on the basis of California law. C. There is no Removal Jurisdiction Based on Affirmative Defenses or Potential CrossClaims. In his Notice of Removal, Donald does not contend that Shelly's right to relief necessarily depends upon resolution of a substantial question of federal law. /.

15 Case :cvgwas Document Filed // Page of Page ID #: Z (_) Wow Instead, Donald claims that Shelly's unlawful authoriation "of the transfer and use of [Donald's] private and personal medical records violated U.S.C. section () and U.S.C. section.," two nonexistent sections of the United States Code. Although he does not explain why this is in any way relevant to removal or how it establishes federal question jurisdiction, Donald apparently contends that because he may assert certain affirmative defenses, or could potentially assert crossclaims in the future, relating to federal privacy statutes, that is a sufficient basis to create federal question jurisdiction. Donald also filed a Supplemental Objection on July, just prior to removing the case, which further indicates that he intends to assert alleged privacy violations as an affirmative defense to the relief sought in the Petition. See Ex. to Heindel Decl. at. But Donald's contention that his anticipated defenses or crossclaims create removal jurisdiction flies in the face of longstanding and controlling authority to the contrary, not to mention being a violation of Rule of the Federal Rules of Civil Procedure. It is simply beyond dispute that a party cannot create removal jurisdiction based on matters that are raised as a defense or possible crossclaim. Merrell Dow, U.S. at ("A defense that raises a federal question is inadequate to confer federal jurisdiction."); Val/es v. Ivy Hill Corp., F.d, (th Cir. ) (a defense raising a federal question does not support federalquestion jurisdiction); Rath Packing Co. v. Becker, F.d, (th Cir. ) ("Removability cannot be created by defendant pleading a counterclaim presenting a federal question under U.S.C. section "); ColJmn AlCA LLC v. Williams, U.S. Dist. LEXIS, *.. (C.D. Cal. ) (summarily remanding state law unlawful detainer action where defendant asserted federal question defenses). /.

16 Case :cvgwas Document Filed // Page of Page ID #: C r _.s ri C cj ) IV. REMOVAL IS IMPROPER BECAUSE DONALD IS NOT A DEFENDANT IN THE PROBATE ACTION A second defect in Donald's attempted removal is that he is not a defendant in the Probate Action. It is well settled that "only a defendant has the right to remove." Turner v. Jackson Park Hospital, Fed. Appx., (th Cir. ) (emphasis added) (citing U.S.C.,, ); Shefman v. Shefman, WL (E.D. MI ) (interested party in probate action cannot remove). Thus, in the Ninth circuit, the weight of authority is that only an original defendant, against whom the plaintiff asserts a claim in the complaint, may remove. See Gartec v. Joseph Enterprises, Inc., U.S. Dist. LEXIS, * (N.D.Cal.) (concluding that a thirdparty defendant does not have the power to remove a case); Saeilo Machinery, Inc. v. Hirdes Freight, Ltd., AMC, (C.D. Cal. ) (adopting the majority view that crossdefendants may not invoke the removal mechanism); Cross v. Kaiser Foundation Hospitals, U.S. Dist. LEXIS, * (N.D. Cal. ) (following the majority rule that "cross defendants and thirdparty defendants are not allowed to remove"); Orosco v. Royal Roofing Co., U.S. Dist. LEXIS, * (N.D. Cal. ) (concluding that "thirdparty defendants cannot remove pursuant to section (a) because a thirdparty defendant is not a 'defendant" for the purposes of the removal statute). Donald is not a defendant in the Probate Action, Shelly is not a plaintiff, and Shelly asserted no claims against Donald in the Petition. Rather, as a Settlor, former Trustee and Beneficiary of the Trust, Donald had standing to file Objections to Shelly's Petition. See Cal. Probate Code (a)() (providing for notice of In his Notice of Removal, Donald incorrectly asserts that Shelly sought the Probate Court's "determination that respondent DONALD STERLING lacked the requisite mental capacity to act as cotrustee of the Sterling Family Trust." Notice, Z. Shelly merely sought a determination that Donald had ceased to serve as a Co Trustee of the Trust under the Trust's removal provisions, which does not implicate the question of Donald's actual capacity or lack of capacity. Petition at :. In fact, the Probate Court ruled that capacity is not an issue at the evidentiary hearing. Heindel Dccl., (h). /.

17 Case :cvgwas Document Filed // Page of Page ID #: : ) c : C <C hearing on a petition relating to a trust upon the trust's beneficiaries). See Shefman, WL at, fn. (probate matter summarily remanded where removed by "an interested party who has filed objections and other submissions in the probate actions"). Indeed, as the district court explained in Schmidt v. Association of Apartment Owners of Marco Polo Condominium, F. Supp., (D. Haw. ) (emphasis added): We believe that the reference in the general removal statute, [section], is only to [the] plaintiffs defendants and does not include such defendants as thirdparty defendants, crossclaim defendants, and other parties that are not defending a claim asserted against them by the plaintiff.... If the plaintiff and the plaintiffs defendants must, or have chosen to, adjudicate their suit in a state forum, we fail to find any statutory right clearly given to other type defendants, by the general removal [statute], to choose a federal forum. Id., quoting A Moore's Federal Practice.[] (). V. DONALD HAS WAIVED ANY RIGHT TO REMOVAL THROUGH HIS ACTIVE PARTICIPATION IN THE PROBATE ACTION A third fatal flaw in Donald's removal is his active participation in the Probate Action for several weeks before his lastsecond removal on the eve of the evidentiary hearing. It is "well established that a defendant 'may waive the right to remove to federal court where, after it is apparent that the case is removable, the defendant takes actions in state court that manifest his or her intent to have the matter adjudicated there, and to abandon his or her right to a federal forum." Acosta v. Direct Merch. Bank, F.Supp.d, (S.D Cal. ) (quoting Resolution Trust Corp. v. Bayside Developers F.d, (th Cir. )). /.

18 Case :cvgwas Document Filed // Page of Page ID #: U c (Xl Throughout the course of the Probate Action, Donald has unequivocally manifested his intention to have the matter adjudicated by the Probate Court. Most importantly, Donald has sought three continuances of the July evidentiary hearing, the most recent being on July, the very day he then removed the Probate Action to this Court. At no time in connection with any of his requests for a continuance did Donald inform the Probate Court that he intended to remove this case. Heindel Deci., ). Precisely to prevent the sort of blatant game playing being engaged in by Donald and his counsel in this case, the law is clear that where, as here, a defendant seeks a continuance in state court without notifying the court of his intention to remove the case, he acts "in a manner inconsistent with [his] intent to seek federal jurisdiction. In so doing [he] has assented to the jurisdiction of the state court." Chicago Title & Trust Co. v. Whitney Stores, Inc., F. Supp., (N.D. Ill. ). Moreover, a defendant "may not, after having argued and lost an issue in state court, remove the action for what is in effect an appeal of the adverse decision." Kiddie Rides USA, Inc., v. ElektroMobiltechnik GMGH, F. Supp., (C.D. Ill. ); Koklich v. California Dept. of Corrections WL (E.D. Cal. ) ("actions that would indicate an intent to waive removal include:... arguing and losing an issue in state court in which removal would act as an appeal of an adverse state court decision"); see also, Moore v Permanente Medical Group, F. d, (th Cir. Cal. ) (overruled on other grounds) (upholding the district court's decision that "the right to removal is waived by acts which indicate an intent to proceed in state court and that defendants may not 'experiment' in state court and remove upon receiving an adverse decision"). Donald unsuccessfully sought a continuance from the Probate Court on three separate occasions, and the Probate Court ruled adversely to Donald regarding several issues relating to the scope of allowable evidence at the evidentiary hearing. /.

19 Case :cvgwas Document Filed // Page of Page ID #: IM Heindel Decl., (h). It is only after losing on these issues before the Probate Court and facing an evidentiary hearing on July, the next business day, that Donald removed this matter to delay Shelly's ability to obtain a favorable ruling in the Probate Action. Donald is not entitled to use the federal courts as a forum for a fourth bite at the judicial apple. Finally, Donald has taken numerous other actions demonstrating his intent to proceed in the Probate Action. He filed Objections and Supplemental Objections to the Petition. He associated additional probate counsel in preparation for the evidentiary hearing in the Probate Action. He served Dr. Meril Plater, a key witness in the evidentiary hearing, with a deposition subpoena. He served Shelly with a notice to appear at trial. He appeared through counsel at two trialsetting conferences, and retained his own experts. He has also filed numerous briefs and motions, including a lengthy trial brief. See Heindel Decl., (a)(i). Donald clearly intended to litigate in the Probate Action until he realied that he was losing on the key issues, the day of reckoning was upon him, and the Probate Court would not allow him to delay the evidentiary hearing. Accordingly, even if he otherwise had a right to remove the Probate Action, which he plainly did not, Donald waived that right by his extensive participations in the Probate Action. I VI. THE COURT SHOULD SUMMARILY REMAND THIS ACTION ON AN EXPARTE BASIS ON OR BEFORE JULY OR SHELLY WILL BE DENIED ANY EFFECTIVE RELIEF UPON LATER REMAND Donald is calculating that he can delay the Probate Court's ruling on Shelly's Petition long enough to jeopardie the Closing occurring before July. Without an immediate summary remand, he may very well achieve his goal of patently misusing the removal process to achieve delay. This case cries out for a swift rebuke to Donald's cynical abuse of the judicial process. The Probate Court intentionally set an evidentiary hearing to commence /.

20 Case :cvgwas Document Filed // Page of Page ID #: L) (I) 'C NC starting July based on the need for Shelly's Petition to be resolved by July. Thus, if this matter is not immediately remanded to the Probate Court by July, it is unlikely that the Probate Court will be able to rule on the Petition before July, thereby effectively denying Shelly the relief that she seeks. Indeed, the hearing may be delayed for weeks or even months given the Probate Court's congested docket. This is truly a case in which time is of the essence. There is an urgent need for the Probate Order from the Probate Court confirming Shelly's acts in connection with the sale of the Clippers at a record price of $ Billion pursuant to the BTS and directing her to consummate that sale. The Probate Order is required to satisfy the "Conditions to Closing" for a July,, closing under the BTS. Exhibit to Heindel Decl.,. This urgency was expressly acknowledged by the Probate Court in its June, Order, which set the matter on shortened notice of a contested evidentiary hearing "given the upcoming deadlines regarding the proposed acquisition of the Los Angeles Clippers. to Heindel Decl.,. Thus, the sale of this $ Billion asset hinges on the Probate Court granting the Probate Order by July,. Even if this Court ultimately remanded this case in the normal course after a noticed hearing, or even later in the week of July, there is a very real risk that it will be too late, and there will be no opportunity to have the Probate Action resolved by the Probate Court before July..." Ex.. It is to deny Shelly the opportunity to have a timely hearing on the merits that Donald and his A condition to the Closing is that the NBA owners approve the sale, which they will consider at a scheduled meeting on July,, but only if the Probate Court has first confirmed the sale under the BTS. If the evidentiary hearing in the Probate Action is delayed and the Probate Court has not confirmed the sale by July, Shelly loses all control over her ability to satisfy the NBA approval condition. Even assuming the closing date under the BTS is extended to August,, the NBA owners do not have another scheduled meeting until October, and Shelly has no ability to ensure that the owners will meet before that date to approve the sale such that the BTS could close by August. /

21 Case :cvgwas Document Filed // Page of Page ID #: t rid Q Ir counsel adopted the desperate tactic of filing a legally frivolous Notice of Removal on July. that facially do not belong in Federal Court. E.g., Co?fln, U.S. Dist. LEXIS at * (summarily remanding matter based on ex parte application). This is especially appropriate where, as here, removal occurred on the eve of trial. Nat. Mortg. Ass 'n v. Sandoval, WL * (E.D. Cal. ) (case summarily remanded based on "defendant's delay tactics" in removing on the eve of trial). A summary remand of the Probate Action is similarly warranted. VII. Courts in the Central District regularly issue summary remands of matters CONCLUSION Federal For each of the foregoing reasons, Shelly respectfully requests that this Court summarily issue an Order remanding this matter to the Probate Court, without hearing or opposition, so that the evidentiary hearing in the Probate Action can commence as scheduled, on July. DATED: July, GREENBERG GLUSKER FIELDS CLAMAN & MACHTINGER LLP By: Is/Matthew N. Falley MATTHEW N. FALLEY Attorneys for Trustee ROCFTIELLE H. STERLING LOEB & LOEB LLP By: Is/Adam F. Streisand ADAM F. STREISAND (SBN ) Attorneys for Interested Party STEVEN A. BALLMER /.