The ongoing battle over Sumner Redstone’s health care and mental capacity took yet another two steps in seemingly harried directions today. After some posturing on all sides, a January 26 NYC deposition of the Viacom founder’s current heath care agent and CEO Philippe Dauman has been penciled in, I’ve learned. With that, and now that the previous stay has been formally lifted by an L.A. Superior Court judge, lawyers for former longtime Redstone companion and ex-health care agent Manuela Herzer are seeking high powers too, of sorts.

Having also been given a final ruling late last week by Judge David Cowan that they cannot depose the 92-year old media mogul now, Herzer’s attorneys are aiming for the California Court of Appeals in a long shot writ of mandamus in the hope of getting the 2nd Appellate Division to intervene in the matter.

greenberg glusker logo“Unless this Court immediately acts, a miscarriage of justice may occur,” says the petition filed today by Pierce O’Donnell, Bert Fields and Herzer’s other lawyers from Greenberg Glusker Fields Claman & Machtinger LLP as well as attorneys from Greines, Martin, Stein & Richland LLP (read it here). “This Court should issue a peremptory writ of mandate directing the trial court to vacate the portions of the January 2016 Orders prohibiting Ms. Herzer from deposing Mr. Redstone and denying Ms. Herzer’s request for a mental examination of Mr. Redstone,” adds the filing evocating the Health Care Decision Law, the NYC residence of Dauman, and false notions of privacy and basic fairness. “At minimum, it should issue an alternative writ of mandate or an order to show cause and order expedited briefing and argument.”

And Herzer’s side wants time to move fast before it takes over, so to speak.

“An appellate ruling a year or two from now that Mr. Redstone’s capacity should have been further examined will be futile, because mental capacity is not fixed—it changes over time, especially when the patient at issue is already 92 years old with serious ailments, and an examination of Mr. Redstone several months from now may have little probative value in determining his capacity in 2015,” the writ lays out there.

Image (4) Philippe-Dauman_20110602225742.jpg for post 360434Redstone’s Loeb & Loeb lawyers, who filed a Dauman lite motion on January 4 to dismiss Herzer’s initial November action, have argued since the beginning of this battle that the Viacom boss’ ex-health care agent and overall ex isn’t really interested in the gentleman’s health or welfare but her own for when he passes. In late December paperwork, Herzer stated that she is more than OK for cash thank you very much. With accusations of forged signatures, she also said all she wants the supposedly rapidly declining Redstone cared for completely and not by a health care agent who lives on the other side of the country as the Viacom CEO does. Redstone’s lawyers and Dauman, in a deposition submitted in response to Herzer’s first moves this fall, claim that while the media chairman is showing his age, he still is the one making all the decisions – and that it was he that kicked Herzer out of his home in October and signed the documents making his CEO also his health care agent. A hearing on the dismissal motion is currently scheduled for February 8 in downtown L.A.

That might all become null and void if the Appeals Court jumps in and starts issuing directives of its own – a reality that is rare but not beyond the realm of possibilities in this case, the path so far is anything to go by.