Case 2:14-cv GW-AS Document 6 Filed 07/07/14 Page 1 of 7 Page ID #:389

Transcription

1 Case :-cv-0-gw-as Document Filed 0/0/ Page of Page ID #: Tel. () Bobby Samini, Esq. (SBN ) Telephone: () -000 Facsimile: () -00 Attorney for Respondent, DONALD T. STERLING UNITED STATES DISTRICT COURT FOR THE CENTRAL DISTRICT OF CALIFORNIA In the Matter of the STERLING FAMILY TRUST CASE NO.: :-cv-0 DEFENDANT S OPPOSITION TO PLAINTIFF S EX PARTE APPLICATION FOR SUMMARY REMAND OF THE STERLING FAMILY TRUST MATTER TO PROBATE COURT [REMAINDER OF THIS PAGE LEFT INTENTIONALLY BLANK] -

2 Case :-cv-0-gw-as Document Filed 0/0/ Page of Page ID #:0 INTRODUCTION COMES NOW, Defendant Donald Sterling ( Defendant or Donald ), hereby files this opposition to Plaintiff Shelly Sterling s ( Plaintiff or Shelly ) ex parte application seeking summary remand of the Sterling Family Trust matter to probate court. Since Defendant s case properly invoked federal question jurisdiction, the matter is rightfully before the federal court. Consequently, Defendant strongly urges this Court not to remand the matter to probate court until this Court has had an opportunity to fully and properly review and rule on the merits of this case. Tel. () STATEMENT OF FACTS Plaintiff filed her petition in this action on June,, in the Los Angeles County Superior Court (case number BP ). The petition was assigned for all purposes to the Honorable Michael Levanas in Department of the Los Angeles County Superior Court. Donald Sterling filed his Statement of Opposition to the petition on June,. Plaintiff filed her petition in a clandestine effort to obtain court approval for a proposed sale of the Los Angeles Clippers to Steven Ballmer ( Ballmer ). Plaintiff also sought the court s determination that Donald Sterling lacked the requisite mental capacity to act as co-trustee of the Sterling Family Trust. Shelly s petition seeks court confirmation that she was authorized as sole trustee of the Trust to enter into an agreement with Ballmer for the proposed sale of the Los Angeles Clippers on May,. The petition contends that Donald lacked the capacity to act as cotrustee of the trust on May,. Donald challenged any assertion of his alleged incapacity to act as co-trustee on the basis of fraud and undue influence. Shelly scheduled examinations of Donald in May by two doctors that petitioner hand-picked. Shelly fraudulently misrepresented the purpose of the two examinations in May, and used undue influence on Donald to arrange for his appearances at the two examinations. Shelly then pursued determinations by the two doctors that Donald allegedly lacked the mental capacity to act as cotrustee of the Trust. Shelly engaged in her subterfuge to attempt the removal of Donald as cotrustee of the Trust in order to attempt a proposed sale of the Los Angeles Clippers to Ballmer. Yet, on June 0,, Shelly stipulated to Donald Sterling s capacity to act as co-trustee of the Trust. This Court has original jurisdiction under the provisions of U.S.C. (Federal Question). In advance of the two examinations of Donald Sterling in May, petitioner -

3 Case :-cv-0-gw-as Document Filed 0/0/ Page of Page ID #: Tel. () unlawfully authorized the transmission of private and personal medical records of respondent to her hand-picked doctors. The unlawful authorization by Shelly Sterling of the transfer and use of respondent s private and personal medical records violated U.S.C. section 00() and U.S.C. section.0. The action was properly removed by Donald Sterling on July, pursuant to the provisions of U.S.C. and U.S.C.. On the evening of July,, Shelly Sterling gave notice and subsequently filed her ex parte application for summary remand of the Sterling Family Trust matter to probate court. This blind opposition is filed in response to Shelly Sterling s claims that this Court lacks jurisdiction to hear this matter. ARGUMENT I. PLAINTIFF S MOTION TO REMAND IS ANOTHER EFFORT TO IGNORE THE PRIVACY RIGHTS OF DONALD STERLING Plaintiff s motion to remand this case is yet another deliberate effort on her behalf to utterly disregard Donald Sterling s privacy rights in her attempt to unilaterally and surreptitiously sell the Los Angeles Clippers against her husband s wishes. With this in mind, Plaintiff makes the implausible claim that an Anderson Cooper interview with Donald Sterling raised the concern that her estranged husband was afflicted with dementia. Pointedly, Plaintiff fails to refer to a single argument in the interview that even remotely suggests that Donald Sterling was afflicted with dementia. Plaintiff used her feigned concern with her estranged husband s alleged affliction to schedule medical examinations of Donald Sterling with two of her hand-picked neurologists. Worse yet, Plaintiff improperly authorizes the transfer, access, and use of the private and personal medical records of Donald Sterling by Dr. James Edward Spar ( Spar ) and Dr. Meril Sue Platzer ( Platzer ). Plaintiff was clearly committed to every fraudulent effort to remove Donald as co-trustee of the Sterling Family Trust. Plaintiff s commitment to fraud is unequivocally evidenced by her improper authorization for the use of Donald s private and personal medical records by her handpicked doctors, Spar and Platzer. Spar certified on May,, that Donald was supposedly incompetent to carry out his duties as a co-trustee. Two days later, Platzer certified on May,, that Donald was supposedly unable to carry out his duties as a co-trustee. Thereafter, -

4 Case :-cv-0-gw-as Document Filed 0/0/ Page of Page ID #: Tel. () Plaintiff executed the Binding Term Sheet ( BTS ) with Ballmer on May,. After the execution of the BTS, the scheduled vote of the NBA Board of Governors to strip the Sterlings of their ownership interest in the Los Angeles Clippers on June, was deferred. Incredibly, Plaintiff then stipulated to the capacity of Donald Sterling on June 0,. Donald s Notice of Removal cited the federal statutes that authorize his private cause of action in the United States District Court. Title U.S.C. section 00 () defines the proscribed transfer and access to a person s private and personal medical records. The section from the Health Information Technology for Economic and Clinical Health Act ( HITECH ) emphasizes the privacy protection afforded Donald s private and personal medical records. Defendant mistakenly cited U.S.C. section.0 in his Notice of Removal, whereas the correct citation is to CFR Section(s) 0 and, sub. E. Those sections in the Code of Federal Regulations prohibit an unauthorized transferring use of a person s private and personal medical records. Likewise, Title U.S.C. section d- is a parallel statutory proscription of the unauthorized transfer and use of medical records set forth in the Health Insurance Portability and Accountability Act ( HIPPA ). In R.K. v. St. Mary s Medical Center Inc., a recent West Virginia Supreme Court case, the Court held that in West Virginia, as well as many other states, that HIPPA does in fact authorize a negligence per se action for violation of the federal statute. R.K. v. St. Mary s Medical Center Inc., W.Va. (). The West Virginia Supreme Court explained the limited circumstances that authorized a private right of action for violations of the federal statutes. Plaintiff s subterfuge in the unlawful transfer of Donald s private and personal medical records to Spar and Platzer clearly illustrates the limited circumstances for a private cause of action. Plaintiff improperly utilized Donald s medical records to obtain certifications of incapacity from Spar and Platzer. With the attempted removal of Donald as co-trustee, plaintiff erroneously believed she could execute the Binding Terms Sheet for the sale of the Los Angeles Clippers an asset which Donald Sterling has time and again made abundantly clear that he does not wish to part with at this time (Emphasis added). On June 0,, Plaintiff revealed her fraudulent use of Donald s medical records in May by stipulating to his capacity. -

5 Case :-cv-0-gw-as Document Filed 0/0/ Page of Page ID #: Tel. () Assuming arguendo that this Court is disinclined to find that Donald Sterling has a federal private cause of action under either HIPPA or HITECH, this Court may still find that federal question jurisdiction exists in this case. The Supreme Court has acknowledged that in rare cases, a federal court may find federal question jurisdiction in the absence of a federal private right of action. Merrell Dow Pharmaceuticals Inc. v. Thompson, U.S. 0 at 0 (). II. REMOVAL IS PROPER BECAUSE DONALD STERLING IS A CONSIDERED A DEFENDANT IN THE PROBATE ACTION UNDER PROBATE CODE 0 Plaintiff s claim that a second defect in Donald s attempted is that he is not a defendant in the Probate Action is erroneous. Removal is proper in this case because Donald Sterling is in fact considered a defendant under Probate Code Section 0. Contrary to Plaintiff s contention, and for purposes of removal to this Court, the probate code specifically provides under 0 that the petitioner or other party affirming is the plaintiff and the party objecting or responding is the defendant. (Emphasis added) Cal. Prob. Code Section 0. Simply put, as the responding party (i.e. Respondent) to Petitioner Shelly s petition, Donald is properly considered a defendant in this matter. Consequently, as a defendant, Donald has the right to remove the matter to this Court. III. REMOVAL IS PROPER BECAUSE DONALD TIMELY FILED HIS NOTICE OF REMOVAL AND HAS NOT WAIVED HIS RIGHT TO REMOVAL Defendant s notice of removal was filed on July, less than thirty days after Plaintiff filed her petition on June,. Therefore, pursuant to U.S.C. (b), Defendant s notice of removal was timely filed and removal is proper on this ground. Plaintiff further claims that a third fatal flaw in Donald s removal action is his active participation in the probate court for the past three weeks. Such active participation, Plaintiff claims, manifests an intent on Donald s behalf to have the matter adjudicated there and therefore effectively waives any right to remove the case to this Court. Plaintiff s argument as to Donald s active participation is entirely disingenuous. The only active participation that Donald has engaged in has been in regard to his (thus far) unsuccessful attempt at seeking a continuance to his impending probate -

6 Case :-cv-0-gw-as Document Filed 0/0/ Page of Page ID #: Tel. () trial which was set under incredibly unreasonable and prejudicial short notice about three () weeks ago. In fact, the entire case in the probate court is an absolute sham orchestrated by Plaintiff in an attempt to supplant Donald as co-trustee of the Trust in order for Plaintiff to unilaterally proceed with the sale of the Los Angeles Clippers to Ballmer without the consent of Donald Sterling. IV. CONCLUSION In consideration of the foregoing, the United States District Court is respectfully requested to deny Plaintiff s motion to remand the case to the Los Angeles County Superior Court. Date: July, By: /s/ Bobby Samini Bobby Samini, Esq. Attorney for Respondent, DONALD T. STERLING -

7 Case :-cv-0-gw-as Document Filed 0/0/ Page of Page ID #: Tel. () PROOF OF SERVICE STATE OF CALIFORNIA ) ) SS: COUNTY OF LOS ANGELES ) I am employed in the County of Orange, State of California. I am over the age of and not a party to the within action; my business address is, Costa Mesa, California. On July,, I served the within RESPONDENT DONALD T. STERLING S NOTICE OF REMOVAL on the interested parties in said action by placing the original X a true copy thereof, addressed as follows: Betram Fields Pierce O Donnell Marc M. Stern Caroline Heindel GREENBERG GLUSKER FIELDS CLAMAN & MACHTINGER LLP 00 Avenue of the Stars, st Floor Los Angeles, CA 00-0 Adam F. Streisand Amy K. Bell LOEB & LOEB, LLP 000 Santa Monica Blvd., Suite 0 Los Angeles, CA 00 X BY UNITED STATES MAIL, I am "readily familiar" with the practice of collection and processing correspondence for mailing. Under that practice, it would be deposited in a box or other facility regularly maintained by the United States Postal Service with First-Class postage thereon fully prepaid that same day at Costa Mesa, California, in the ordinary course of business. I am aware that on motion of party served, service is presumed invalid if postal cancellation date or postage meter date is more than one day after date of deposit for mailing in affidavit. BY FACSIMILE TRANSMISSION, I caused the above-referenced document(s) to be transmitted to the above-listed addressee(s). BY PERSONAL SERVICE, I caused to be delivered such envelope by hand to the offices of the addressee. State I declare under penalty of perjury under the laws of the State of California that the above is true and correct. X Federal I declare that I am employed in the office of a member of the bar of this court at whose direction the service was made. Dated: July, /s/ Diana Alderete Diana Alderete -