Maxwell Blecher sat at the table in front of the judge.  To his right was Mr. Samini and to his left were Attorneys Pierce and Streisand. 


The judge opened the discussion by saying that the papers brought up questions that he wanted to address.  He got the witness lists and that Mr. Samini had filed a motion to continue the trial but that he had not read it or considered it because it was not timely filed and there had been no application for an ex parte hearing on the motion to continue so he would not be addressing the motion to continue in today's hearing.   He said that the witness lists broke down the reasons they would be testifying and that two doctors had stated that Mr.  Sterling was incapacitated.  He said that Mrs. Sterling and Mr. Ballmer were not asking the court to determine Mr. Sterling's competency but only to instruct Shelly that she can act as sole trustee.


The judge said that the trust provided three ways to determine incapacity of a trustee:


1.  With a declaration by the trustees regular attending physician which was not the case here.


2.  With two declarations by two licensed doctors who specialized in competency evaluations, and


3.  By way of a court order


The judge said he was uncomfortable being asked to rubber stamp the doctors declarations of incompetency without using his judicial power to examine the question himself which the petition was not asking him to do.  How could the court get involved without getting fully involved?  Why was the matter even before the court?  Since the trust stated that a trustee could be removed by two doctors' declarations, and they had the two doctors' declarations, then they could simply proceed on the strength of those two declarations and if Mr. Sterling wanted to contest the actions of the new trustee he could sue for fraudulent exercise of the second paragraph.  The judge was intimating but did not say that the second paragraph in the trust, which was the paragraph the petitioner was relying on, was put in the trust to avoid the need of the new trustee to come to court.  Once the question was brought into court, did not the matter have to be dealt with under the third paragraph? 


The judge went on to say, "You've got the doctors' reports so why am I judging this?  Once you bring it before a judge I have to get really involved."


Mr. Pierce said that "we have a binding contract for $2 billion."


The judge said to Mr. Pierce, "Do you want this matter to be decided under the preponderance of the evidence standard?" and Mrs. Pierce said, "yes."


The judge asked Mr. Pierce if it would Mr. Pierce would allow the respondent to cross examine the doctors about the evaluations and Mr. Pierce said, "no."


Mr. Blecher then said that the petition was being brought before the court under false pretenses.  There had been a clause in the trust which had been drafter prior to the restatement of the trust signed in December of 2013 which allowed the trustee to counter the doctors' declarations but that this clause had been inadvertently omitted from the restatement.  Mr. Blecher stated that the inadvertently omitted clause should be reinstated as a matter of equity because it was not what the parties intended. 

Mr. Samini said that the clause had been clearly omitted by mistake because there was no mention of its removal in any of the discussions or documents and no consideration had been paid to Mr. Stelring in exchange for the removal of the protective clause.


The judge asked Mr. Samini how he would proceed if the case relied merely on the second paragraph and Mr. Samini said, "Wew will cross examine Dr. Spar due to egregious errors in his exam.  If the court relies on paragraph 2, basic contract law requires that the contract be conscionable, not involve mistake, full disclosure and all the other things that a contract has to be to be enforceable.  If he has capacity he relies on equity. 


The judge said, "Before I can go behind the language I have to find ambiguity in the contract.


Mr. Blecher said, "Ambiguity is not the standard.  Equity is the standard."


The judge said, "are you alleging fraud in getting the exam or fraud in interpreting the exam?  You might not be incompetent but could still be tricked into taking the exam.  Speaking for myself, I would not sign this trust.  Right now my wife and I are fine but I don't know what my wife will do in the future.  If we stay on paragraph 2 we have a very short trial.  However, the first witness the petitioner plans to call is a lawyer who will testify that you don't need to come to court so how can we rely on 2?


Mr. Streisand said, "All you have to do is agree that we did it right."


The judge said, "Should I make Balmer a party?  It might be that he does not have standing.

Mr. Balmer said, "I promise to behave."


Mr. Blecher said, "You are not just being asked to certify the licenses of the two doctors, you are being asked to give comfort to Balmer which is beyond your jurisdiction."


Mr. Streisand said, "That would destroy the sale.


The judge said, there are three phases here: first, the issue of certification, the licenses and specialty in the field of mental examination, secondly, we look at the letters (the doctors reports) and..." The judge's third phase was inaudible and


The judge said to Mr. Pierce, "So ...  Balmer ... you do not want the court to address the issue of competence?"


Mr. Pierce said that Shelly Sterling wants a judge to bless that determination. 


The judge said that would be a three phase process:  (1)  Have the doctors testify that they are licensed; (2) determine that the doctors work in the field of assessing competency; and (3) Confirm that they wrote the reports after finding Mr. Sterling suffering from dementia.

Mr. Pierce said, "Correct."


The judge turned his attention to the question of the motion to continue.  He reminded Mr. Samini that there was no ex parte application to hear the motion.


Mr. Samini said, "We did not do an ex parte application because we had an agreement with council that we thought you would set a date to hear it but I can put in an ex parte application if you want.


The judge:  "I need a very detailed declaration from Dr. Cummings to explain why he needs 30 days to speak at a conference instead of seven.  This is a trial setting conference and I can give you a continuance.  I will give you a short continuance but I don't like August.

"These are the briefs I want: and I want courtesy copies in this Department 5.


"I want a motion to continue with a detailed declaration by Dr. Collins

"I want Mr. Streisand says he has standing to make arguments in the case.  I want to know why.

"I want you to brief ambiguity, whether or not the trust is ambiguous.

"I want a brief on the scope of testimony with points and authorities on the defense."


"I want opposition papers filed on the same date.

"Come back on June 30, at 1:30 in this Department (Department 5)

"Have your papers filed June 25 by 1:30 p.m.  Oppositions by June 27 at 11:00 a.m. and replies in court June 30 by 8:30 a.m."