Sumner Redstone will not have to face a deposition next week from his former companion Manuela Herzer’s lawyers, a L.A. Superior Court judge ruled today. However, as settlement talks remain in limbo, the May-scheduled trial over the media mogul’s health care is still on the calendar, a measured Judge David Cowan said Thursday.

Redstone still could testify at that trial, “but he’s not going to appear to provide testimony,” noted Redstone’s attorney Robert Klieger at the hearing in downtown L.A. this afternoon before the judge made his ruling. The lawyer then told Cowan that the mogul might give written testimony. Citing Redstone’s severe speech impediment, the attorney also said they still might include him in the case at some point but have no plans to call him as a witness.

“Let’s cut to the chase: You are going to have decide at some point if he has mental capacity,” Herzer’s chief attorney Pierce O’Donnell said to the judge, also before today’s ruling was announced. O’Donnell noted that in a March 26 correspondence that Redstone’s lawyers told him that the 92-year-old would be called as a witness.

“That dooms their case,” said O’Donnell after the hearing of Redstone’s reps’ decision not to have him as a witness after all. “It’s a stunning turn of events,” he said, pointing out that their decision not to pursue the depo once Redstone’s lawyers said the billionaire would not be appearing as witness.

O’Donnell also noted that the postponed depositions of Philippe Dauman and Sheri Redstone now will take place in NYC on April 26 and April 19, respectively. “Ms. Herzer would still like to resolve this matter,” O’Donnell added, hanging out the possibility that settlement talks could start again.

Today’s decision comes over just 24-hours after Herzer’s Greenberg Glusker Fields Claman & Machtinge attorneys made their application in the ongoing and often convoluted lawsuit over who should decide what when it comes to Redstone’s health and well-being. Currently, Viacom CEO and Chairman Dauman is LA-based Redstone’s health care agent and would make decisions for the ex-Viacom chair if he were unable to do so himself.

Filed in November, Herzer’s potentially explosive and already embarrassing lawsuit is based on the fact that she was removed from the role last fall and replaced by NYC-based Dauman.

Herzer has claimed that Redstone did not sign the papers giving the role to his corporate right-hand man. Booted out of Redstone’s Bev Hills mansion in October, removed as his health care agent and deleted from his will and the more than $50 million she stood to get, Herzer has alleged that the billionaire is, in fact, in much rougher shape than Dauman, family, lawyers and handlers want to admit. She has used the term “living ghost” in previous filings.

And now it looks like that Redstone’s condition has been in question for over a year. A recently revealed April 9, 2015 email from a lawyer advising Herzer and then fellow Redstone companion Sydney Holland on behalf of the mogul’s reps expressed concerns about his state – serious concerns.

In reference to a Vanity Fair interview, Adam Streisand warned Herzer and Holland that if Redstone “shamed” his daughter Sheri, she might seek “a conservatorship” over him that could mean, “his current condition will become public, and Viacom will have to remove Sumner as an officer/director and stop paying him compensation.”

As the case has made its way through the courts, depos for Dauman and Sheri Redstone have sought by Herzer’s attorneys, fought by the other side’s Loeb & Loeb lawyers, granted and then shelved, the former companion’s side have repeatedly sought a deposition from the ex-Viacom and CBS boss himself.

After submitting to a court-ordered medical examination by a doctor of Herzer’s in late January, Redstone resigned from his position as executive chairman at CBS on February 3, with Les Moonves replacing him very soon afterward in a clear attempt to avoid any further corporate controversy. The next day Redstone dropped being executive chairman of Viacom with Dauman voted in to the job by the board over the clear objections of Sheri Redstone.

With Redstone still controlling 80% of the voting shares at Viacom and CBS, Wall Street is watching the legal battle carefully. They seemed to have nothing to worry about – at least for a few days.

Philippe Dauman Shari RedstoneWith the trial looming, talks on a possible agreement became a reality in late March. Last week, with the scheduled Dauman and Sheri Redstone depos postponed, it looked like a settlement was close to completion with the Redstone offspring set to take over the health care duties from the Viacom exec. However, earlier this week, talks hit an “impasse,” according to Herzer attorney Pierce O’Donnell, who said it had nothing to do with money for Herzer – which brought us to yesterday’s application and today’s hearing.

“We are deeply gratified that the Court continues to protect Mr. Redstone’s privacy and dignity,” said Gabrielle Vidal, Redstone’s chief Loeb & Loeb lawyer in a statement after the hearing Thursday. “Ms. Herzer’s eagerness to subject a 92-year old man with a severe speech impairment to these intrusive proceedings is offensive.  We also find it telling that while Ms. Herzer claims to be acting for Mr. Redstone’s benefit, she refers to him in Court as her ‘opponent’.”