(UPDATE with new lawsuit and statements from attorney and Shari Redstone:) The trial over who controls Sumner Redstone’s heath care is over, a Los Angeles Superior Court judge ruled today, pulling the plug on the proceedings. After receiving requested briefs over the weekend from attorneys for the media mogul’s ex-companion Manuela Herzer and Redstone’s reps (read them here & here), the tentative ruling this morning by Judge David Cowan to grant the motion to dismiss from lawyers for the former Viacom and CBS boss comes after just one full day of trial on Friday.
“There is no good cause for further judicial involvement where the Court has now heard directly from Redstone that he has lost trust in Herzer, does not want her in his life and instead wants his daughter Shari to look after him if necessary,” Cowan wrote in his tentative ruling Monday in reference to the videotaped testimony from the mogul that was played in a closed court Friday. “Redstone is presumed to have capacity … the Court has no business interfering with his prerogatives,” the judge adds. The tentative was adapted as a final ruling after attorneys for both sides briefly spoke.
“Mr. Redstone is grateful that the Court dismissed this case and honored his stated wish to keep Manuel Herzer out of his life and healthcare decisions,” Redstone’s lawyer Gabrielle Vidal of Loeb & Loeb said in a statement after the the ruling. “Mr. Redstone looks forward to spending time with his loved ones in peace.”
Deadline has learned that Herzer’s lawyers are appealing today’s ruling and have also just filed a more than $100 million civil suit against Shari Redstone and seven members of the household medical staff (read it here). “What happened to Sumner Redstone was not the product of free will,” Herzer’s lead attorney Pierce O’Donnell told Deadline, stressing undue influence by the younger Redstone and the medical staff. “Promptly after her significant loss in court today, Herzer continued her baseless attack against the Redstone family with a second lawsuit,” a spokesperson for Shari Redstone said this morning in response. “It is total fiction and continues to speak volumes about Herzer’s motivation and character.”
With Wall Street and Hollywood both paying close attention due to the 80% of the voting shares at Viacom and CBS that Redstone controls, and therefore an estimated $40 billion in media assets, the trial examining the 92-year old billionaire’s competency was scheduled to run until May 16. Coming over 6-months after Herzer first filed her legal challenge to being replaced last October as Redstone’s health care agent by current Viacom CEO and Chair Philippe Dauman, that opening day of the non-jury trial was dominated by the testimony of the ailing mogul himself.
Calling Herzer a “f*cking bitch” repeatedly, Redstone in a short deposition taken at his Beverly Hills home on May 5 also told O’Donnell and his own primary attorney that “I want Manuela out of my life.” Though often finding it hard to communicate and requiring the assistance of a speech therapist as “interpreter,” the severely speech impaired mogul told the lawyers he wanted “Shar …Shari” to be in charge of his health care directive, a clear-ish reference to his sometimes estranged daughter Shari Redstone.
While the downtown courtroom was cleared of the general public and media on the morning of last Friday during the playing of the video of Redstone’s deposition, a transcript was immediately afterwards provided by Herzer’s Greenberg Glusker Fields Claman & Machtinge legal team.
Though the day also saw extensive testimony from Herzer hired expert Dr. Stephen Read, a geriatric psychiatrist who examined Redstone on January 29, and Redstone vocational nurse Joe Octaviano, the mogul’s statements weighed heavy on Judge Cowan almost as soon as he heard them. “I want to know why that testimony shouldn’t be respected at the end of the day,” the judge asked O’Donnell in court, also saying when it comes to proving a lack of capacity on Redstone’s part, “your burden now is a hard one.”
Loeb & Loeb attorney Vidal announced later on the afternoon of May 6 that Redstone’s side would yet again be seeking a dismissal and followed up strongly on May 8 in their brief. “Were there compelling evidence that Mr. Redstone did not understand what he was doing when he removed Ms. Herzer from his advance health care directive, or that the wishes he expressed just last week were the product of undue influence, then perhaps dismissal would be premature,” the renewed motion stated. But there is no such evidence. Ms. Herzer suggested that the Court needed to hear from only two witnesses to determine capacity-Mr. Redstone and Dr. Read. The Court has heard from both, and the evidence of capacity is overwhelming.”
“Mr. Redstone has told the Court in no uncertain terms who he wants as his health care agent should he become unable to make his own decisions, and it is his daughter, Shari Redstone, not Ms. Herzer,” the 11-page motion added. “With Mr. Redstone’s capacity no longer genuinely in dispute, that should be the beginning and end of the inquiry.”
With a bevy of witnesses on their schedule including granddaughter Keryn Redstone, various medical professionals and household staff but excerpts of the video deposition taken by Bert Fields of Daman in NYC last month, Herzer’s team filed their own brief on May 8 seeking to keep the case going.
“The salient question before the Court is not only what Redstone said, but also whether Redstone fully appreciates what he said, and whether he has been unduly influenced to make those statements, however strongly he may have spoken,” noted O’Donnell and Herzer’s legal team in their 16-page response to the motion to dismiss, also filed on May 8. “Although Redstone speaks in disparaging and vulgar terms about Herzer, whom he once called the ‘love of his life,’ the Court cannot assume that he was expressing his true wishes and beliefs, particularly when those statements were only intelligible to his speech therapist.
“The Court also needs to hear the substantial evidence why Shari Redstone is manifestly unfit to serve as Redstone’s health care agent. Herzer proffers that the evidence will show that Shari’s unfitness is not merely geographical but also warranted because of (1) her demonstrated, profoundly different views than her father about end-of-life decisions, (2) her history of estrangement from her father and their suspicious recent ‘reconciliation,’ and (3) her active campaign of spying against her father and violating his privacy on a grand scale,” Herzer’s side also offered as an argument to Judge Cowan to keep the trial alive. “There can be no doubt that Redstone did not want Shari Redstone to be his agent while he was still competent,” they added.
The trial seemed set last month not to ever occur. Settlement talks between the two sides in early April had, Herzer to receive around $30 million to end her case and the younger Redstone was to take over from NYC-based Dauman as her father’s health care agent. That near end came to an end when things hit an “impasse,” in the words of O’Donnell, and fell apart in mid-April.
Regardless of settlement or not, Redstone’s attorneys have argued from the beginning that the the billionaire was always fully aware what he was doing when he kicked Herzer out of his home last fall and soon afterwards replaced her with Dauman as his health care agent. They added to that last week in pre-trial filings that, among other monetary allegations, that Herzer expressed no concerns about the neurological state of Redstone in September 2015 when he made her his solo health care agent after the end of his relationship with fellow ex-companion Sydney Holland.
Still, various concerns about Redstone’s true physical and neurological health abounded, with his lawyers fighting hard to keep his medical records and the man himself out of the trial. After submitting to a court-ordered medical examination by Herzer’s Dr. Read earlier this year, 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 his executive chairman title at Viacom with Dauman voted in to the job by the board over the objections of Shari Redstone.
Moves that many interpreted as signs that worries about public disclosures of Redstone’s actual status could impact his corporate governance and Viacom and CBS themselves.
Now, with Redstone’s own slurred but coherent enough word having, “defeated her case,” in Judge Cowan’s words, Herzer finds herself out of the mogul’s life and out of court – for now.