After weeks of will-he-or-won’t-he legal wrangling and posturing, a Los Angeles Superior Court judge today ruled that Sumner Redstone will give testimony in the looming trial over who controls the mogul’s health care and ultimately perhaps who pulls the strings on his approximately $40 billion in corporate assets. “As the only concern of this case is Redstone’s welfare, his appearance is of the utmost significance,” Judge David Cowan said in a tentative ruling Monday.
However, testimony from the 92-year old media mogul will not take place in a downtown courtroom. The ruling stipulates that Pierce O’Donnell or another lawyer for Redstone’s ex-companion Manuela Herzer can take 15 minutes of testimony at Redstone’s Beverly Hills home. A lawyer for Redstone can then have 15 minutes to question the mogul.
While Herzer and Redstone family members are not allowed to be present, speech therapist Anne Lefton will be in the room to assist if the mogul’s speech impediment becomes an issue. Although no date for the testimony has been set, it is expected to take place in the next couple of days as Redstone is the first witness being called by the plaintiff on Friday. Video of the questioning will be taken and shown in a closed courtroom and won’t be made public; a transcript will made public after Cowan sees the footage.
With four days to go until the trial over the ex-Viacom and CBS boss’ heath care and competency begins, Cowan’s ruling Monday that the ailing 92-year Redstone does have make an appearance of sorts is just the latest twist in the more than five-month-old matter and the already embarrassing and potentially corporately divisive proceedings. Once promising settlement talks with Herzer remain scuttled.
“Allowing Redstone to testify at home is consistent with accommodations to which a person with disabilities would be rightfully entitled,” said Cowan’s tentative today. “As a cautionary measure, Redstone’s counsel shall also have the unilateral right to terminate the deposition should he or she believe there is at that time any risk to Redstone’s health going forward. The Court expects that the experienced lead counsel for Herzer shall take the deposition in a non-adversarial way so as not to cause undue stress to Redstone.”
Earlier Monday, Herzer’s Greenberg Glusker Fields Claman & Machtinge lawyers filled an opposition to the attempt by Redstone’s attorneys to keep the mogul out of the trial directly. “This very motion to quash is still another attempt on the part of Counsel to sequester Redstone in Beverly Park and prevent the Court from seeing for itself his tragically debilitated mental condition,” stated the redacted 17-page filing (read it here).
This latest sparring over the media mogul’s presence in the case — be it in the courtroom or another location — started last week when Herzer’s legal team filed to have Redstone as a witness. Having promised in an April 14 hearing that they would not call their client as a witness, Redstone’s Loeb & Loeb attorneys pushed to keep him out of the matter, citing his speech impediment and other maladies. At one point lat month, Redstone’s lawyers floated the notion of having the mogul offer written testimony, but Cowan quickly put an end to that idea.
Set to start on May 6 in L.A. Superior Court, the non-jury trial stemming out of Herzer’s initial late-November filing will also see appearances by Herzer; a plethora of medical professionals and household employees; plus Sheri Redstone; her father’s other ex-companion Sydney Holland; and Viacom CEO and chairman Philippe Dauman. The Viacom chief, who is also Redstone’s current health care agent, will likely appear in video snippets from his April 26 NYC deposition.
With a final status conference scheduled for May 5, the trial will run until May 16 with short opening arguments by both sides Friday morning.
In other moves in the matter, Herzer’s side has filed paperwork (read it here) requesting the court to divide the trial. In a tactical move of having your cake and eating it too, the legal team want the competency issue dealt with first and the undue influence topic only addressed if Cowan doesn’t decide initially that the media mogul is incompetent. Cowan deferred any decision on the bifurcation until the May 5 status conference.
That competency has been at the heart of the matter since Herzer first turned to the courts late last fall after being kicked out of Redstone’s Beverly Hills home, dropped from a $70 million payout of cash and real estate in his will, and replaced by Dauman as the person who is enabled to make medical decisions for the mogul if he can’t for himself. Calling Redstone a “living ghost,” Herzer alleges that he didn’t want the changes made and may not have even independently signed the required documents.
Adding fuel to Herer’s fire, it now looks like that Redstone’s condition has been in question by his own people for over a year. A recently revealed April 9, 2015 email from an estate-planning lawyer advising Herzer and then fellow Redstone companion Holland on behalf of the mogul’s reps expressed concerns about his state – serious concerns.
In reference to a then-upcoming 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.”
With Redstone still controlling 80% of the voting shares at Viacom and CBS, such corporate moves could have big-money implications. To that end, Wall Street is paying a lot of attention even though Redstone is now more removed from the immediacy of corporate diligence.
After submitting to a court-ordered medical examination by a doctor of Herzer’s in late January, the National Amusements Inc. owner resigned from his position as executive chairman at CBS on February 3, with Les Moonves replacing him soon afterward in a clear attempt to avoid 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.
The younger Redstone was set to take over from Dauman as her father’s health care agent in the deal that was being formatted in settlement talks last month. That all came crashing down when things hit an “impasse,” in the words of Herzer’s lead lawyer O’Donnell, and fell apart in mid-April. At that time, sources told Deadline that Sheri Redstone was a big proponent of a deal with Herzer.
Now the younger Redstone and Herzer will both have the opportunity to give their opinion on the state of Sumner in the trial both ultimately probably wanted to avoid – so will, it seems, Sumner Redstone himself.