PROBATE CODE SECTION 1310, SUBDIVISION (B): ITS USES AND POTENTIAL ABUSES
By Ciarán O’Sullivan*
There is nothing quite like the scandal-laced sale of an NBA franchise to shed light into a hitherto little-known corner of the Probate Code. In Sterling v. Sterling1 , a case notorious for non-probate reasons, the Los Angeles probate court directed the co-trustee of the Sterling Trust, Shelly Sterling, to sell the Los Angeles Clippers to Microsoft co-founder Steve Ballmer over the vigorous objections of erstwhile co-trustee Donald Sterling, notwithstanding his pending appeal of the court’s order removing him as co-trustee. The court invoked Probate Code section 1310, subdivision (b) ("Subdivision (b)"), in instructing Shelly to sell the team while the appeal was pending because it found the potential loss of the sale to Ballmer during the inevitable delay resulting from the appeal amounted to the sort of significant "injury" to the Sterling Trust contemplated by the statute. This article discusses the Sterling case, as well as similar cases decided before and since that illustrate when courts are likely to apply Subdivision (b), an extraordinary statute that in certain situations deprives the Court of Appeal of any meaningful ability to review orders of the lower court.
A general rule of appellate practice provides that the appeal of any order or judgment stays its effect pending resolution of the appeal.2 There are numerous exceptions,3 most notably where an order or judgment requires the payment of money. In the probate context, Subdivision (b)4 provides an additional exception to the general rule that is unique to probate practice in that it allows for the enforcement of an order appointing an interim fiduciary or authorizing certain actions by the fiduciary notwithstanding the pendency of an appeal of that order, where the court deems it necessary to prevent harm to a "person or property." The essential prerequisite for an order under Subdivision (b) is the existence of a qualifying injury that justifies enforcing an order during appeal and therefore before a reviewing court can address the merits.