Sumner Redstone Won't Immediately Undergo Examination In Healthcare Legal Fight

Manuela_Herzer_Sumner_Redstone_Sydney_Holland - H 2015
Patrick McMullan

Manuela_Herzer_Sumner_Redstone_Sydney_Holland - H 2015

If Sumner Redstone undergoes a medical examination of his mental competency in the legal fight over his healthcare, it won't be in the coming week, a Los Angeles judge decided Monday.

Manuela Herzer, one of Redstone's exes, requested in papers Wednesday the court place her in charge of Redstone's care after she was "inexplicably thrown out" of the mogul's home on Oct. 12. She notes Redstone, 92, appointed her his "healthcare agent" in healthcare documents in 2014 and September 2015 and argues Redstone "lacked the mental capacity" to remove her and appoint Viacom CEO Philippe Dauman on Oct. 16.

Alongside the petition, Herzer, represented by entertainment law heavyweights Bert Fields and Pierce O'Donnell of Greenberg Glusker, requested an expedited proceeding in which the petition would be heard next week and discovery conducted in the upcoming days, including the examination of Redstone and depositions of Redstone, one of his attorneys and members of his home staff.

Redstone representatives filed an opposition Wednesday arguing a section of the California Probate Code permits the dismissal of a petition not "reasonably necessary for the protection of the patient."

In the hearing Monday, judge Clifford Klein denied Herzer's attorneys' request for an expedited schedule. "I did not find there was any urgency under the court rules. One, he has personal physician. Two, he is not suffering from any critical health issues, three, he has full-time care and four, his health agent is an attorney and CEO of Viacom," said Klein.

With the case proceeding on a normal schedule, the judge ruled to halt discovery, including depositions and examinations, until a hearing on Redstone's motion to dismiss the petition. He additionally noted he felt the discovery requests were "too broad."

Questions of Redstone's mental competency lately have challenged the companies he controls, Viacom and CBS, with the companies' stocks declining significantly this year and Redstone not coming to shareholder meetings for the first time. A medical examination of the aging mogul could introduce questions of whether he was legally bound to inform shareholders of his condition.

Herzer's court documents paint a picture of a completely incapacitated Redstone, unable to move or speak and prone to uncontrollable bouts of crying. He no longer can follow a conversation or the plot of a film or TV show, she says, and is "obsessed" with having sex daily and eating steak despite doctors' recommendations.

Redstone’s reps have called Herzer's claim "meritless" and "riddled with lies." They retorted in opposition papers Wednesday, "Let's be blunt. Ms. Herzer's baseless demands and allegations are an attempt to take discovery in service of building a record for the post-death trust contest she intends to bring, and have nothing to do with any present (let alone urgent) concern for Mr. Redstone's protection."

"This case is about his healthcare," said O'Donnell after the hearing Monday. "That's the focus. I can't talk about what goes on behind the scenes with lawyers and settlement talks, but money is not what this is about. She's spending a substantial amount of money on lawyers to vindicate his right to have the person he chose when he was competent to be in control of his healthcare."

The opposition documents include declarations from Dauman, in which he claims Redstone was "engaged and attentive" when he visited Redstone's home in November, and from Redstone's doctor deeming the health of the mogul “quite good."

Redstone's representatives from Loeb & Loeb have filed for a different judge than the one assigned (California law permits parties to replace the judge one time only). The new judge, when selected, will schedule a hearing on the motion to dismiss for early 2016.

Said Redstone lawyer Gabrielle Vidal of Loeb & Loeb in a statement, "We are pleased the Court today expressly rejected Ms. Herzer's claims of urgency and granted our request to stay discovery pending next year's hearing on our motion to dismiss."

Dec. 1, 12:45 p.m. Updated with comments from O'Donnell and Vidal and details of scheduling and the judge.