Petitioner Response Re Motion to Dismiss via The Hollywood Reporter

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35882-00002/2585253.7

PETITIONERS’ RESPONSE TO COUNSEL’S RENEWED MOTION TO DISMISS

BERTRAM FIELDS (SBN 024199) [email protected] PIERCE O’DONNELL (SBN 081298) [email protected] MARC M. STERN (SBN 126409) [email protected] PAUL A. BLECHNER (SBN 159514) [email protected] BERNARD RESSER (SBN 92873) [email protected] ELISABETH A. MORIARTY (SBN 156569) [email protected] IRA M. STEINBERG (SBN 273997) [email protected] TIMOTHY J. TOOHEY (SBN 140117) [email protected] GREENBERG GLUSKER FIELDS CLAMAN & MACHTINGER LLP 1900 Avenue of the Stars, 21st Floor Los Angeles, California 90067-4590 Telephone: 310.553.3610 / Fax: 310.553.0687 RONALD RICHARDS, ESQ. (SBN 176246) [email protected] LAW OFFICES OF RONALD RICHARDS & ASSOCIATES, A.P.C. P.O. Box 11480 Beverly Hills, CA 90213 Telephone: (310) 556-1001 / Fax: (310) 277-3325

Attorneys for Petitioner MANUELA HERZER

SUPERIOR COURT OF THE STATE OF CALIFORNIA

COUNTY OF LOS ANGELES

In re ADVANCE HEALTH CARE DIRECTIVE OF SUMNER M. REDSTONE

Case No. BP168725

[Assigned to The Hon. David J. Cowan, Department 79)

PETITIONER’S RESPONSE TO COUNSEL’S RENEWED MOTION TO DISMISS; DECLARATION OF BERNARD M. RESSER

Shortened Hearing Date: May 9, 2016 Time: 8:30 a.m. Dept.: 79

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35882-00002/2585253.7 1


I. INTRODUCTION

The Court has asked why it is in Redstone’s best interests for this proceeding to continue

when Redstone has expressed his strong desire to have Shari Redstone, and not Manuela Herzer,

serve as his health care agent. There are two answers:

First, the Court cannot terminate the trial by accepting at face value Redstone’s testimony,

no matter how firmly his views may be held. This is only the beginning of the inquiry, not the

end. The Court is duty-bound to look behind the testimony to determine whether Redstone’s

views are those of a man of a sound mind and whether he came to and has maintained these views

absent any undue influence. If the answer to either question is “no,” then the October 16, 2015,

and April 4, 2016 Advance Health Care Directives are invalid. To answer these questions, the

Court needs to hear all of Herzer’s evidence.

Second, terminating trial after one day and three witnesses would be a great disservice to

Redstone’s best interests because, if his decisions are the product of mental illness or undue

influence, the proceedings are not only reasonably necessary, but essential, to protect him. Who

serves as Redstone’s health care agent matters. And, although the logical outcome following the

invalidation of the October 16, 2015, and April 4, 2016 Advance Health Care Directives is that

Herzer would be restored as health care agent under the September 3, 2015 Advance Health Care

Directive, the Court has ample discretion to decide who should serve in this sensitive position in

light of the evidence of Redstone’s current animosity toward Herzer.

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.

In the interests of justice, as well as Redstone’s best interests, the Court should allow

Herzer, as she is entitled, to put on her full case so that it can hear all of the evidence bearing on

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capacity and undue influence before making a final decision as to those issues. Accordingly, the

motion to dismiss must be denied (again) and the trial allowed to proceed.

II. THE COURT NEEDS TO LOOK BEYOND REDSTONE’S TESTIMONY

At the first day of trial in this matter, the Court indicated that it was grappling with several

issues regarding capacity and undue influence in light of Redstone’s videotaped testimony.

Although the Court stated that it did not want to be “reacting too strongly to one witness’s

testimony” (May 6, 2016 Trial Transcript of P.M. Session (“Afternoon Transcript”) at 64:1-2), it

questioned whether Redstone’s testimony regarding Herzer should be “respected at the end of the

day” (May 6, 2016 Trial Transcript of A.M. Session (“Morning Transcript”) at 32:2-4) or whether

it “shows that he lacks capacity or he’s under undue influence” (Morning Transcript at 32:20-22).

The Court also suggested that Redstone has “told me now the best he can what he wants, and

that’s strong evidence.” (Morning Transcript at 32:16-17; see also Afternoon Transcript at 64:25-

27 (“Is [Redstone] just reacting strongly or does he know what he’s doing when he’s reacting

strongly. I think that’s what I’m wrestling with.”))

Herzer respectfully submits that the Court must look closely at all of the evidence relating

to Redstone, rather than looking at Redstone’s testimony in a vacuum or in isolation.1 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. 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.

Redstone’s angry outbursts and frequent use of profanity do not mean that the responses

reflected his “true” feelings. As Dr. Read has attested, Redstone’s vehement and vulgar

statements may be the result of Redstone’s serious cognitive impairment and continued undue

influence by Shari Redstone and others. Specfically, Dr. Read testified that Redstone has

1 “As every citizen who serves on a jury is instructed, the trier of fact must keep an open mind throughout a trial, as “[e]vidence can only be presented a piece at a time.” CACI 100.

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“uncontrollable outbursts of anger which are very severe and which intrude on Mr. Redstone's

ability to continue with in [sic] a reasonable fashion to consider reason . . . .” (Morning Transcript

73:17-19). This is demonstrated by the fact that instead of responding to questions meaningfully,

Redstone repeated the same epithet over and over.

As Dr. Read testified, it is very common that an individual subject to undue influence

believes that his statements are his own, rather than implanted by the influencers. Dr. Read also

testified that such outbursts were delusions, which exemplify Redstone’s lack of capacity.

Moreover, Dr. Read testified that Redstone’s decision to terminate Herzer as his agent was a sign

of cognitive impairment because,

“at a minimum it doesn’t take into account the 17 years minus a couple of days that

preceded October 16 and October 12th. So to that extent, it neglects this huge other body

of experience that he had. And his inability to consider that, and in my opinion he had an

inability to consider that because of the short-circuiting of his reasoning, his reasoning is

impaired anyway and his emotions take over so quickly, so in my opinion that would be

delusional, yes.”

Morning Transcript 78:5-13.

Redstone’s outbursts against Herzer in his videotaped deposition thus do not indicate that

he had capacity, but rather confirm that he lacks capacity.2 Indeed, to credit such outbursts as

Redstone’s “true” wishes would repudiate the purposes of Probate Code § 4609 and expose

vulnerable individuals to the possibility of exploitation by others.

There are also numerous suspect elements to the video testimony of Redstone. While

there is no doubt that Redstone states that he does not want Herzer to serve as his health care

agent, as for other aspects of his testimony, there is a serious question as to whether Redstone’s

own speech therapist was able to act fairly and impartially as an independent “interpreter” when

Redstone’s statements were unintelligible to everyone else. Furthermore, as the Court is aware, at

several points when questioned by Counsel, Redstone’s speech therapist anticipated the answer

2 As experts for both sides now agree, a contractual capacity standard applies to execute or revoke a health care directive.

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before Counsel finished her question. Unless the Court can independently understand Redstone's

answers without the interposition of the “translation” by Redstone’s speech therapist, it should

not accept the responses as accurately reflecting what Redstone said.

In addition, the answers “interpreted” for Redstone are also not clear, even after two

viewings of the video by three of Petitioner’s counsel and Mr. O’Donnell’s physical presence

when Redstone testified and his subsequent viewing of the video. Most importantly, Redstone

was unable to answer simple open-ended questions posed by Herzer’s counsel, yet seemingly

“nailed” the questions posed by Counsel. The disparity between Redstone’s responses to

questions from Herzer’s counsel and his responses to questions from Counsel strongly suggest

that Redstone and his speech therapist had been prompted to rehearse "his" responses.

The Court should not be guided solely by what Redstone purportedly “wants,” unless the

Court is convinced, after hearing and considering all the evidence, that Redstone has the capacity

to articulate what he wants and that what he “wants” is not the product of undue influence. The

danger of uncritically accepting that Redstone’s testimony demonstrates what he wants may be

illustrated by an example of a situation that is undoubtedly familiar to the Court. A testator

makes a will that disinherits his children from the former marriage in favor of his second wife.

The will states on its face that his estate will go to the second wife and that he has disinherited his

children from his former marriage. In that respect, the will may be said to reflect “accurately” the

testator’s intent in the narrow sense that the words in the will are clear and unambiguous. See,

e.g., In re Gutierrez’ Estate (1961) 189 Cal.App.3d 165, 168. Notwithstanding the fact that the

will is “accurate” in that respect, the disinherited children are not precluded from challenging the

will on the ground that it was the result of lack of capacity and undue influence by the testator’s

second wife. In other words, they can show that the undue influence of the second wife subverted

their father’s true testamentary intent, which was to leave them some portion of his estate.3

3 In contrast, Counsel trivializes the serious allegations of undue influence when it likens Redstone’s purported decision to eliminate Herzer as his agent to that of a jilted man removing his former girlfriend as his agent under an Advance Health Care Directive. See Counsel’s Trial Brief at 3-4. An individual who has capacity and is not subject to undue influence is free to remove someone as his agent, including someone who betrayed him. There is no need to inquire

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Similarly, the Court should not give credence to Redstone’s statement simply because the

speech therapist’s “translation” of the words seems to indicate a clear intent regarding Herzer.

Indeed, even if the Court is inclined to give substantial weight to the speech therapist’s

“translation” of Redstone’s responses, due process requires an adequate opportunity to respond.

Here, Herzer was limited to only 15 minutes and not permitted to fully examine Redstone, and,

more importantly in this context, Herzer was not permitted to ask any redirect questions of

Redstone after Counsel asked Redstone questions. Without revisiting the Court’s determinations

on that issue, due process requires that Herzer be permitted to prove her case by other means

before the Court accepts the speech therapist’s "translation" as the final word. In short, the Court

must consider all of the evidence of capacity and undue influence in regard to Redstone's

statements, not just the statements themselves.

It cannot be that an elderly person – particularly an elderly individual whom everyone

agrees is susceptible to undue influence – can simply state what he wants, and have that accepted

as Gospel and implemented without a serious inquiry into why the person is asserting that

position. If that were the law, a clever and skilled “undue influencer” could act with impunity

and without any judicial scrutiny whatsoever. The foregoing result, manifestly, would not be in

the best interests of the elderly person, and it surely is not in the best interests of Redstone.

III. THE PROCEEDINGS ARE REASONABLY NECESSARY TO PROTECT

REDSTONE’S WELFARE

The Court is charged with deciding two related, but independent issues in determining

what is in Redstone’s best interests: (1) whether Redstone had the capacity to sign the October 16,

2015 Advanced Health Care Directive and (2) whether Redstone’s decision on that date was the

result of undue influence. The Court has stated that if the October 16, 2015 Advance Health Care

Directive is invalid, it follows that the later April 4, 2016 Advance Health Care Directive is

likewise invalid. (See Transcript of 4/27/16 Hearing at 27:20-25.) Logically, the September 3,

into the reasons for the removal because the removal is presumed to be rational, unless someone argues otherwise. In the case of Redstone, however, substantial evidence exists that Herzer’s removal was not a rational act of an individual with full capacity, but rather was the act of an individual who lacked capacity and was subject to extreme undue influence.

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2015 Advance Health Care Directive would be the operative document. Assuming that Herzer

(who is the primary agent) should not fill this role, the alternate agent is Viacom CEO Philippe

Dauman. We understand that Dauman (who resides in New York and has his hands full right

now) does not want to assume this responsibility. Whether this is true or not, the Court has the

authority, in protecting Redstone’s best interests to determine who is best suited to serve as

Redstone’s agent. At that point, the Court, based on all the evidence after a full trial, will have to

determine whether his September 3, 2015 Advance Health Care Directive – the last Directive that

he validly executed – should be activated.

At this stage of the proceedings, when the Court has only heard one day of testimony from

three witnesses, the evidence regarding whether Redstone’s decisions are the product of lack of

capacity or undue influence are far from decided. Yet, Counsel’s renewed motion to dismiss

again seeks to improperly preclude Herzer from having a trial on the merits. As on February 29,

2016, when the Court denied the Motion to Dismiss under Probate Code § 4768, substantial

issues exist regarding whether Redstone has capacity or is subject to undue influence.4 Citing

evidence submitted by Herzer in opposition to the motion to dismiss, the Court found that a trial

was necessary See February 29, 2016 Ruling on Probate Code §4768 Motion (“Motion to

Dismiss Ruling”) at 11 (“It will therefore be the Court’s primary task at trial to determine which

of these physicians most accurately states Redstone’s mental status. Depending on which one the

Court concludes is closest to describing his situation, the 'interest of the patient' will be

impacted.” (Emphasis added)). Those disputed issues persist and are even more pressing today.5

A. A Full Trial Is Needed On the Issue of Capacity

As the Court is aware, both sides in this case agree that Redstone has some mental

impairment, but disagree as to the degree of that impairment and its effect on competent decision- 4 The Court found that a motion to dismiss under Section 4768 was “similar to a motion for summary judgment which cannot be granted if there is a triable issue of fact. Motion to Dismiss Ruling at 4. 5 Moreover, for purposes of preserving the record, Herzer raises again her more general objection to Counsel’s use of Probate Code § 4768 to seek dismissal for reasons other than a challenge to forum and venue. (See Opposition to Motion to Dismiss, Section II.)

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35882-00002/2585253.7 7


making. A full trial is necessary to determine the degree of impairment and whether Redstone

lacks capacity.

In his testimony at trial, Dr. Read overcame the presumption of capacity with testimony

that Redstone lacked capacity to change his Advance Health Care Directive in October 2015.

Dr. Read’s opinion could not have been clearer in this regard, nor supported by a more thorough

examination or Report under the circumstances. (Exhibit 175.) The testimony of Dr. Spar and

other percipient witnesses will further bolster Dr. Read's conclusions.6

Dr. Read testified that “Redstone’s mental status was severely compromised and

compromised to a degree that in my opinion he did not have the requisite mental capacity to

understand and appreciate the consequences of his actions in changing his healthcare directive on

October 16 of 2015.” Morning Transcript 41:2-7. In comparison to Dr. Spar’s report, which

Counsel will offer, Dr. Read testified that his “opinion is based on a much more thorough

evaluation of mental functions” and on “an extensive amount of collateral information that

Dr. Spar did not utilize.” Id. at 41:22-23 and 42:4-5. Dr. Read further testified that Redstone was

severely impaired when he made the “very complicated” and “precipitous” decision to terminate

Herzer. Id. at 78:22-25. Although Redstone may have literally understood that he was signing a

document removing Herzer as his agent, he did not fully comprehend what he was doing or

understand the consequences of that act. Afternoon Transcript at 56:2-20. Indeed, Dr. Read

stated that it was “embarrassingly common” for people to sign documents but not appreciate what

in fact they were doing. Id.7 (Attached as Exhibit A are excerpts of some of Dr. Read’s

testimony at trial on lack of capacity.)

Herzer also has developed additional evidence regarding Redstone’s capacity which has

not yet been presented to the Court. The Court has not yet heard from Dr. James Spar (and thus

6 As the Court observed in the Motion to Dismiss Ruling, among the “factual issue[s] necessitating a trial” are disputes in medical opinions, including the factual bases of those opinions. Motion to Dismiss Ruling at 11. 7 At trial, the Court will hear that Dr. Spar corroborates the conclusions of Dr. Read’s report in substantial part.

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cannot evaluate his opinion or credibility), nor has Herzer had the opportunity to present evidence

from percipient witnesses who will attest to Redstone’s ability (or inability) to currently make

decisions of his own free will.

B. A Full Trial Is Needed On the Issue of Undue Influence

Although some of the evidence in this case is difficult to hear, the Court, as it recognized

at the outset of the proceedings on Monday, is the only forum which is capable of protecting the

best interests of Redstone against the cabal of staff members and relatives who initially in

October 2015 succeeded (and continue to succeed) in unduly influencing him to throw out Herzer

and remove her from his Advance Health Care Directive four days later.8

The parties agree that Redstone is susceptible to undue influence. At trial, in addition to

Dr. Read’s compelling testimony and Joseph Octaviano’s disturbing admissions about Shari

Redstone’s spy network, Herzer will show that Redstone was not only “susceptible,” but in fact

subject and succumbed to relentless undue influence as defined under Welfare & Institutions

Code § 15610.70, which means “excessive persuasion that causes another person to act or refrain

from acting by overcoming that person’s free will and results in inequity.” Under this standard, a

Court must consider, inter alia, (1) the vulnerability of the victim; (2) the influencer’s apparent

authority; (3) the actions or tactics used by the influencer; and (4) the equity of the result.

As a proffer, Herzer represents that strong evidence of undue influence will be elicited

from Shari Redstone, Ben Ferrer, Jeremy Jagiello, Herzer, Keryn Redstone, “Isi” Tuanaka,

Giovanni Paz, Igor Franco, and others. Dozens of documents will bolster their testimony. Before

deciding this issue, the Court must hear all of this evidence.

Under the circumstances that exist here, there is also a presumption of undue influence.

Under Estate of Sarabia (1990) 21 Cal.App.3d 599, 605, a “presumption of undue influence

arises only if all of the following elements are shown: (1) the existence of a confidential

relationship between the testator and the person alleged to have exerted undue influence;

8 Dr. Read agreed that there was a “domino effect” when Redstone – incapacitated and unduly influenced – decided to eject Herzer from his house that led inexorably to removing her from his Advance Health Care Directive.

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(2) active participation by such person in the actual preparation of execution of the will, such

conduct not being of a merely incidental nature; and (3) undue profit accruing to that person by

virtue of the will. If the presumption is activated, it shifts to the proponent of the will the burden

of producing proof by a preponderance of evidence that the will was not procured by undue

influence. It is for the trier of fact to determine whether the presumption will apply and whether

the burden of rebutting it has been satisfied.”

As the Court recognized in denying the Probate Code § 4768 Motion to Dismiss, the

Probate Code entrusts the Court with making precisely this type of determination, particularly

when the disputed issues arise in a highly charged context requiring determinations of motives

and credibility. Moreover, “the Court cannot determine the validity of these competing claims of

motive [between Herzer and Shari Redstone] without seeing the witnesses and hearing testimony.

. . . [M]aking necessarily difficult judgment calls about people’s motives and whether they are

acting only in their own self-interests requires a trial. This case has already proven through

discovery that often self-serving declarations, prepared with the assistance of or by counsel, do

not always tell the whole truth.” Motion to Dismiss Ruling at 13-15.

Dr. Read testified that, in his experience, a victim of undue influence “almost always”

believes that what he is doing is actually of his own free will. Afternoon Transcript at 70:9-14.

Indeed, such victims often “believe it’s their true voluntarily come to decision and feeling.” Id. at

70:13-14. Herzer, as does Counsel, agrees with Dr. Read’s assessment that Redstone is

susceptible to undue influence.

In addition to Dr. Read’s testimony, there is substantial testimony that Redstone was

unduly influenced by his staff, nurses and Shari Redstone. Nurse Octaviano on Friday set the

table for this evidence by giving scandalous testimony about the deplorable (and frankly,

criminal) conduct on the part of Redstone’s care-givers and staff at the instigation of Shari

leading up to Herzer’s banishment. Octaviano testified that Redstone’s staff blatantly conspired

with Shari Redstone to invade Redstone’s privacy and to exert undue influence over Redstone to

remove Herzer as Redstone’s health care agent (and as Octaviano’s de facto “boss”). This

testimony, which has not yet concluded, and the email communications undertaken furtively and

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35882-00002/2585253.7 10


in furtherance of this conspiracy carried out at the behest of a billionaire, are just the tip of the

iceberg. Nurse Octaviano’s testimony regarding the conspiracy to eject Herzer will be fleshed out

by that of numerous other co-conspirators, including Isi Tuanaki, Jeremy Jagiello, Giovanni Paz,

Shari Redstone, as well as witnesses Nurse Ben Ferrer, Keryn Redstone, and Herzer. In short,

there is a mountain of evidence yet to be heard supporting Herzer’s claim of undue influence..

Moreover, some of the substantial evidence that will be submitted to confirm undue

influence includes the “briefing” of Redstone on the very day of Herzer’s removal by Jeremy

Jagiello that “Manuela was stealing millions of dollars from you. . . . She kept all of us from

telling you.” See Exhibit 93. As Dr. Read testified, the “briefing” of Redstone about the day’s

event on the very day of Herzer’s ejection raises serious questions about Redstone's memory and

ability to carry out a plan and suggests that the removal was not his idea. Afternoon Transcript at

54:1-55:16. This notion will be further reinforced by evidence from Keryn Redstone that her

grandfather cried and confirmed missing Herzer in the days and weeks following her removal.

One of the questions that the Court must answer is whether Redstone’s statements today are his

true statements or the result of six-plus months of unrelenting brainwashing in a confined and

controlled environment where steps were taken to keep away anyone even suspected of having

any sympathies to Herzer. And according to Dr. Read, Redstone was unaware of Herzer’s

multiple requests to see him; she never afforded the chance to inform him that she had not

betrayed him after 17 years of loyalty.

Undue influence was further confirmed by Octaviano’s testimony regarding Jagiello’s

influence on Redstone, including manipulation of his being the sole conduit to intimate relations

between Redstone and Terry Holbrook. As the evidence will show, Shari Redstone manipulated

the actions of Redstone’s staff and nurses, including enlisting them as spies transmitting private

information from the household to her, to get Herzer out of the house. Testimony will further

show that Redstone’s staff and nurses have continued to reinforce their views regarding Herzer’s

removal on Redstone – all at the behest of Shari Redstone.

As the evidence has already shown and will continue to show, not only was Redstone’s

change in his Advance Health Care Directive the product of undue influence, but that decision

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has now been continuously reinforced for six months by the same influencers, including Shari

Redstone and Jagiello. The result of this continued undue influence was Redstone’s “testimony”

in Thursday’s deposition. If Redstone’s statements were alone respected without hearing further

evidence, the protections afforded by the Probate Code and Health Care Decisions Law of 2000

can be eviscerated by the bare assertions of demented and/or brainwashed victims of undue

influence – the equivalent of the Stockholm Syndrome in probate.

Although considerable additional evidence will be introduced regarding undue influence,

Herzer should not now be put to the task at the inception of her case in chief of providing a road

map to Counsel regarding the examinations of additional witnesses regarding the conspiracy to

eject Herzer. Suffice it to say, Herzer has much more to offer on undue influence that she

believes will persuade the Court to rule in her favor and thereby protect Redstone.

IV. THE COURT MUST HEAR SUBSTANTIAL EVIDENCE TO ADDRESS WHO

SHALL SERVE AS REDSTONE’S HEALTH CARE AGENT

Once the Court decides the competence and undue influence issues, it should address who

should serve as Redstone’s health care agent. The invalidation of the October 16, 2015 Advance

Health Care Directive does not necessarily mean that Herzer should be the health care agent. As

the Court recognized in denying the Motion to Dismiss on February 29, 2015, this question

requires full consideration of all of the evidence at trial. As the Court stated in the Motion to

Dismiss Ruling:

Redstone argues that putting Herzer back into the position she seeks would be

contrary to Redstone’s purported wishes. This in any event asks the Court to

assume too much: If the AHCD naming Herzer was effectively revoked, the Court

will not need to reach this issue. If the AHCD naming Herzer is still effective,

what role she would have, if any, will be an issue the Court will have to address at

trial. Though it would not necessarily entail Herzer returns to Redstone’s home,

the Court recognizes that the situation here is not simple.

Id. at 15 (emphasis added). See also id. at 4 (“[h]uman nature is complicated. That is why courts

hold trials: to weigh competing claims, to evaluate credibility of witnesses testifying in front of

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the Court and to allow for cross-examination that may bring up issues not otherwise disclosed. In

this way, the adversarial process can allow for all the truth to come out”).

The difficulty of fashioning a remedy, such as reinstating Herzer as Redstone’s agent or

reverting to another agent, should not prevent the Court from conducting a trial as to the

controverted facts. After hearing the evidence and issuing a proposed statement of decision or

findings of fact, the question of an appropriate remedy may be further briefed by the parties.

Dismissing the matter because a remedy may be difficult to fashion is not appropriate.

In this case, the Court will hear substantial evidence that the Court should not entrust any

portion of Redstone’s health care to Shari Redstone. Not only did Shari Redstone instigate staff

and nurses to spy upon Redstone and convey protected health information and other private

information to her in surreptitious e-mails, but she also has very different views regarding end-of-

life decisions than her father (as evidenced by the controversy over the insertion of a feeding tube

that saved Redstone’s life).

Moreover, Shari Redstone has had very public disagreements with, and been estranged

from, Redstone. Notably, the vulgar phrase that Redstone now uses to describe Herzer was

previously used repeatedly by Redstone in reference to his daughter Shari Redstone, and it was as

recently as January 8, 2015, that Redstone sent Shari Redstone a letter threatening to bar her from

his funeral if she would not sign a release (see Trial Exhibit 48) and April 9, 2015, when Shari

Redstone is threatening to initiate conservatorship proceedings over Redstone (see Trial Exhibit

55). Yet, with Herzer removed and Shari Redstone now controlling Redstone’s words, Shari

Redstone has procured the suspicious December 2015 "reconciliation" letter that purports to

rewrite the family history and has now even reprogrammed her father to direct his words for her

toward Herzer.

Instead of allowing Shari Redstone to have control over any portion of Redstone’s health

care, the Court should fashion a remedy that comports with Redstone's best interests. What the

Court cannot do in exercising its duties is to leave Redstone in his present situation surrounded by

a web of deceit.

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35882-00002/2585253.7 13


In this regard, Herzer retains standing to challenge the October 2015 and the April 2016

Directives, even if the Court has concluded that Herzer would not appropriately be reinstated as

Redstone’s health care agent. While Herzer has shown herself repeatedly to have Redstone’s best

interests at heart, her challenge to the disputed Directives does not require her reinstatement as

Redstone's health care agent. Further, in denying the motion to amend the Petition to add Keryn

Redstone as a co-petitioner, the Court confirmed that this matter would be focused on Redstone’s

capacity and whether he was unduly influenced, and that it is “not going to be focused on

Petitioner.” (April 20, 2016 Transcript at 6:14-19.) Keryn Redstone has expressed her own,

independent concern regarding the April 2016 Directive and, in particular, Shari Redstone’s

appointment as health care agent. And, in denying Herzer's motion to amend, Keryn Redstone

was told she would “have an opportunity to be a witness.” (April 20, 2016 Transcript at 6:20-22.)

The Court should hear that evidence, as well as the evidence of the various other witnesses who

will testify to Redstone’s capacity and/or the presence of undue influence.

V. DISMISSAL AT THIS STAGE WOULD SET AN UNFORTUNATE PRECEDENT

The evidence at trial will show that in May 2014 Redstone executed a Health Care

Directive naming Herzer and Sydney Holland (“Holland”) as his agent. His choice was “blessed”

by Dr. Spar (who administered a full mental status exam to Redstone at that time – in contrast to

his abbreviated October 2015 examination of Redstone) and Leah Bishop, his estate planning

lawyer. This occurred when there is no dispute about Redstone’s capacity or undue influence,

and before his September 2014 hospitalizations that threatened his life. His illness precipitated

the decision (a decision made by Herzer and Holland) that a feeding tube be inserted to save

Redstone’s life and has sustained him ever since. The evidence will show that Shari Redstone

objected to the feeding tube, citing her own religious convictions that differed from Redstone’s

expressed desires. And Dr. Gold and others have confirmed that Herzer is properly credited as

saving Redstone’s life.9

9 Counsel’s crass accusations that Herzer has been motivated by financial gain and not sincere concern for Redstone have never addressed the fact that, with Herzer set to inherit millions, Redstone would have died more than a year ago had Herzer conceded to Shari Redstone’s demands regarding the feeding tube.

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35882-00002/2585253.7 14


Herzer recognizes that the Court's responsibility is to the well-being of Redstone. That is

why she seeks to protect him from the supposed care-givers who turned out to be a den of spies

and co-conspirators of Shari Redstone, all working together to remove Herzer and take control of

Redstone for their own financially-motivated (and sometimes competing) reasons. Herzer greatly

respects the Court's appreciation for the weight of this responsibility and the complexity of the

material to be considered.

However, the precedent that may be set by not allowing a friend (or family member) to

challenge an AHCD—merely because the patient declares that he wants the old AHCD

invalidated and a new health care agent of his supposed “choice” and without a full trial over

disputed facts—would be an unfortunate precedent and in this case, a disservice to Redstone

whom we will demonstrate is incapacitated and the victim of extreme undue influence.10

The Court's decision will also have widespread implications in the practice of day-to-day

decisions by many others in hospitals, in attorney's offices, in homes, and in multiple other

settings. A low standard for testing capacity to execute or revoke an Advance Health Care

Directive, especially one that includes the choice of a health care agent, potentially puts at risk

many persons’ choices made while they were lucid, from being overturned by the delusional or

demented thinking or undue influence that they fall victim to later in their lives – as has Redstone

here.

Redstone needs the Court to protect him from Shari Redstone and his own inability to

distinguish his best interests and the consequences of his "decisions." The Court has the power,

10 This is especially true since executing an Advance Health Care Directive is different from the decision to marry or divorce. The capacity to contract should govern. And, Dr. Spar agrees with Dr. Read that the contractual capacity standard applies to the question of capacity to execute an Advance Health Care Directive.

265:14 Q And you would agree then with Dr. Read 265:15 that the standard for evaluating a person's capacity 265:16 to execute an Advance Health Care Directive is the 265:17 same capacity standard used with respect to medical 265:18 capacity to contract? 265:19 A Yes. Spar Deposition 5/5/16, Vol. II, p. 265:14-19, Ex. C. to accompanying Resser Decl.

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discretion and the obligation to do so here, not just for Redstone, but for all people lacking

capacity who want their desires while competent to be carried out. There can be no doubt that

Redstone did not want Shari Redstone to be his agent while he was still competent.

A full trial on the merits of this issue should continue unabated to prevent an unfortunate

result that is not in Redstone's best interests.

VI. CONCLUSION.

As the Court recognized in its Motion to Dismiss Ruling, it has a duty to protect the

interests of Redstone by conducting a full and comprehensive trial on whether Redstone lacked

capacity and acted (and continues to act) under undue influence. We respectfully urge that

Petitioner be allowed to continue to present her evidence and to persuade the Court that her

claims are, indeed, meritorious.

DATED: May 8, 2016

GREENBERG GLUSKER FIELDS CLAMAN & MACHTINGER LLP

By: BERTRAM FIELDS (SBN 024199) PIERCE O’DONNELL (SBN 081298) MARC M. STERN (SBN 126409) PAUL A. BLECHNER (SBN 159514) IRA M. STEINBERG (SBN 273997) Attorneys for Petitioner Manuela Herzer

Exhibit A

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1

CASE NUMBER: BP168725

CASE NAME: SUMNER REDSTONE

LOS ANGELES, CALIFORNIA MAY 6, 2016

DEPARTMENT 79 DAVID J. COWAN, JUDGE

APPEARANCES: (AS HERETOFORE NOTED.)

REPORTER: TAMARA M. VOGL, CSR NO. 10186

TIME: A.M. SESSION

(THE FOLLOWING PROCEEDINGS WERE HELD IN OPEN COURT:)

THE COURT: GOOD MORNING, EVERYBODY.

(ALL REPLY "GOOD MORNING.")

THE COURT: I'M GOING TO CALL THE REDSTONE CASE,

BP168725. I'LL ASK COUNSEL STARTING TO MY RIGHT TO MAKE

THEIR APPEARANCES.

MR. WALSH: ANDREW WALSH ON BEHALF OF SUMNER

REDSTONE.

MS. VIDAL: GABRIELLE VIDAL, LOEB AND LOEB, ON

BEHALF OF SUMNER REDSTONE.

MR. KLIEGER: ROBERT KLIEGER OF HUESTON HENNIGAN

ON BEHALF OF SUMNER REDSTONE.

MR. O'DONNELL: PIERCE O'DONNELL FOR PETITIONER

MANUELA HERZER.

MR. RICHARDS: RONALD RICHARDS FROM THE LAW

OFFICES OF RONALD RICHARDS ON BEHALF OF PETITIONER.

MR. FIELDS: I'M BERT FIELDS, AND I ALSO REPRESENT

MS. HERZER.

MR. BLECHNER: PAUL BLECHNER OF GREENBERG GLUSKER

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32

CASE TO FOCUS ON THOSE WHO ARE GOING TO BE WITNESSES,

AND I'M THE DECISION-MAKER HERE. I WANT TO KNOW WHY

THAT TESTIMONY SHOULD NOT BE RESPECTED AT THE END OF THE

DAY.

MR. O'DONNELL: WELL, I THINK IT SHOULD BE

RESPECTED TO THE EXTENT THAT I THINK, YOUR HONOR, THERE

WAS SIGNIFICANT PORTIONS OF THAT TESTIMONY WHERE HE

COULDN'T ANSWER AND HE HAD DIFFICULTY ANSWERING.

DR. READ WILL EXPLAIN THAT. HE HAS ALREADY EXAMINED HIM

AS WELL, YOUR HONOR, AND I'M GOING TO ARGUE IN THE

CLOSING CASE THAT THE EXAMINATION FROM COUNSEL WAS

PROGRAMMED AND REHEARSED?

THE COURT: I WANT THIS TRIAL I BELIEVE UNLESS I'M

PERSUADED OTHERWISE, AS I SAID AT THE BEGINNING, TO

FOCUS ON HIS WELFARE. AND HE'S BEEN THROUGH A DIFFICULT

DEPOSITION THAT YOU'VE REQUESTED. HE'S TOLD ME NOW THE

BEST HE CAN WHAT HE WANTS, AND THAT'S STRONG EVIDENCE.

SO I WANT YOU TO -- I'VE HEARD A LOT OF THINGS ON BOTH

SIDES' OPENING STATEMENTS THAT I'M NOT REALLY

NECESSARILY INCLINED TO HEAR. I WANT TO KNOW WHY THAT

TESTIMONY SHOWS THAT HE LACKS CAPACITY OR HE'S UNDER

UNDUE INFLUENCE. AND I WANT YOU, AS I SAID TO YOU

YESTERDAY, YOU NEVER KNOW WHAT HAPPENS IN A TRIAL. I

KNOW YOU KNOW HOW TO THINK ON YOUR FEET. AND I WANT YOU

TO FOCUS ON PERSUADING ME THAT I SHOULDN'T LISTEN TO

WHAT HE HAD TO SAY.

MR. O'DONNELL: WELL. I THINK YOU SHOULD LISTEN

TO WHAT HE HAD TO SAY, YOUR HONOR, THAT'S WHY WE DID THE

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41

Q WHAT IS YOUR OPINION?

A MY OPINION IS THAT MR. REDSTONE'S MENTAL

STATUS WAS SEVERELY COMPROMISED AND COMPROMISED TO A

DEGREE THAT IN MY OPINION HE DID NOT HAVE THE REQUISITE

MENTAL CAPACITY TO UNDERSTAND AND APPRECIATE THE

CONSEQUENCES OF HIS ACTIONS IN CHANGING HIS HEALTHCARE

DIRECTIVE ON OCTOBER 16 OF 2015.

Q DO YOU HAVE AN OPINION, NUMBER TWO, WHETHER

HE WAS VULNERABLE OR SUSCEPTIBLE TO UNDUE INFLUENCE WHEN

HE CHANGED HIS HEALTHCARE DIRECTIVE IN OCTOBER OF 2015?

A I DO.

Q WHAT IS YOUR OPINION?

A MY OPINION IS MR. REDSTONE IS EXTREMELY

VULNERABLE TO INFLUENCE AND THEREFORE UNDUE INFLUENCE ON

OCTOBER 16 OF 2015.

Q AND FINALLY, DO YOU HAVE AN OPINION WHY

YOUR OPINION SHOULD BE ENTITLED IN THE COURT'S EYES

ENTITLED MORE WEIGHT THAN THE OPINION OF DR. SPAR WE'LL

HEAR ABOUT LATER?

A I DO.

Q WHAT IS THAT?

A I THINK THAT MY OPINION IS BASED ON A MUCH

MORE THOROUGH EVALUATION OF MENTAL FUNCTIONS OF

MR. REDSTONE, ADMITTEDLY SOMEWHAT LATER, BUT AT A TIME

WHERE THERE WAS GENERAL AGREEMENT THAT THERE WAS NO

PARTICULAR CHANGE IN MR. REDSTONE BY DR. SPAR'S OWN

OBSERVATION, POSSIBLY EVEN SOME IMPROVEMENT IN THE

INTERVAL FROM OCTOBER TO DECEMBER OF 2015. SO I BELIEVE

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42

MY OPINION IS RELEVANT. MY FINDINGS ARE EXTREMELY

RELEVANT TO THE DATES OF OCTOBER 16. AND IN ADDITION,

MY OPINION AT THE TIME I FORMED IT WAS -- HAD THE

BENEFIT OF AN EXTENSIVE AMOUNT OF COLLATERAL INFORMATION

THAT DR. SPAR DID NOT UTILIZE, ALTHOUGH MUCH OF IT WOULD

HAVE BEEN AVAILABLE TO HIM HAD HE SOUGHT IT OUT.

Q DID YOU PREPARE A REPORT THAT DETAILS YOUR

CONCLUSIONS?

A I DID.

Q WOULD YOU TAKE A LOOK AT EXHIBIT 175,

PLEASE. IT WILL BE ON THE SCREEN.

(EXHIBIT NO. 175 WAS MARKED

FOR IDENTIFICATION.)

THE COURT: YOU MADE IT EASY FOR ME.

MR. O'DONNELL: I TOLD YOU I WAS GOING TO DO THAT.

THE WITNESS: THE FIRST PAGE SHOWED UP ON MINE.

THIS IS THE FIRST PAGE.

BY MR. O'DONNELL:

Q CAN YOU IDENTIFY THAT DOCUMENT FOR US,

DR. READ?

A YES, SIR. THIS IS A REPORT ADDRESSED TO

YOU DATED FEBRUARY 4, AND I BELIEVE IT TOTALS 37 PAGES.

Q IS THIS THE REPORT YOU REFERENCED THAT

SUMMARIZES YOUR OBSERVATIONS, FINDINGS, CONCLUSIONS

BASED ON YOUR EXAMINATION AND THE OTHER FACTORS RECITED

IN THE REPORT?

A IT IS.

Q NOW YOU PERFORMED A MENTAL STATUS

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73

ROOM WHERE WE WERE SITTING, AND HE INDICATED YES. I

DIDN'T ASK HIM TO POINT TO SPECIFIC PEOPLE.

Q WAS MR. JAGIELLO IN THE ROOM?

A HE WAS SITTING TO MR. REDSTONE'S LEFT, YES.

Q OKAY. LET'S GO TO SOME OF THE FINAL ONES.

D, ABILITY TO MODULATE MOOD AND AFFECT.

A YES. LET ME COMMENT THAT IN MY TRADE, IN

THIS CONTEXT, WE SAY THIS IS AFFECT. AND SO THIS IS AN

UNUSUAL CATEGORY, AND I'LL DRAW ATTENTION TO THE

PHRASING, "IN THE DETERMINATION THAT THERE'S A PERVASIVE

AND PERSISTENT OR RECURRENT MOOD STATE."

MR. REDSTONE IN MY OPINION DOES NOT HAVE CONVENTIONALLY

WHAT WE WOULD DESCRIBE AS A MOOD DISORDER, WHICH WOULD

BE A STATE OF PERVASIVE DEPRESSION, FOR EXAMPLE. BUT

WHAT I'VE CHECKED HERE IS THAT HE DOES HAVE A VERY

SERIOUS PROBLEM WHICH ARE THESE OUTBURSTS, THESE

UNCONTROLLABLE OUTBURSTS OF ANGER WHICH ARE VERY SEVERE

AND WHICH INTRUDE ON MR. REDSTONE'S ABILITY TO CONTINUE

WITH IN A REASONABLE FASHION TO CONSIDER REASON,

ET CETERA. SO IN MY OPINION THAT ACCOUNTS AS A

RECURRENT EMOTIONAL STATE THAT'S INAPPROPRIATE IN DEGREE

TO HIS CIRCUMSTANCES.

Q E?

A E IS A CRITERIA. AND AGAIN, WHICH IS --

THIS IS PARTICULARLY IN EVIDENCE FOR A CONSERVATORSHIP,

BUT IN ANY KIND OF AN EVALUATION, YOU DON'T WANT TO BASE

YOUR OPINION IF THERE'S EVIDENCE THAT THERE'S A

TRANSIENT STATE, WHICH I DISCUSSED EARLIER, WHERE

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78

Q IN TERMS OF HIS VIEW RIGHT UP TO YESTERDAY

OF MS. HERZER AND THE EXPLETIVES THAT HE SAID, HIS

FIRMLY HELD VIEW THAT SHE BETRAYED HIM, WOULD THAT BE AN

EXAMPLE OF A DELUSION?

A WELL, IN MY OPINION AT A MINIMUM IT DOESN'T

TAKE INTO ACCOUNT THE 17 YEARS MINUS A COUPLE OF DAYS

THAT PRECEDED OCTOBER 16 AND OCTOBER 12TH. SO TO THAT

EXTENT, IT NEGLECTS THIS HUGE OTHER BODY OF EXPERIENCE

THAT HE HAD. AND HIS INABILITY TO CONSIDER THAT, AND IN

MY OPINION HE HAD AN INABILITY TO CONSIDER THAT BECAUSE

OF THE SHORT-CIRCUITING OF HIS REASONING, HIS REASONING

IS IMPAIRED ANYWAY AND HIS EMOTIONS TAKE OVER SO

QUICKLY, SO IN MY OPINION THAT WOULD BE DELUSIONAL, YES.

Q AND IN TERMS OF THEN FOCUSING, AS HIS HONOR

WANTS TO IN THIS SHORT PERIOD OF TIME, IF IN FACT HE WAS

TOLD INFORMATION PEJORATIVE, NEGATIVE TO MS. HERZER AND

ACTED UPON IT IMMEDIATELY, DID NO INVESTIGATION, DIDN'T

TALK TO HER, DOES THAT INDICATE IN YOUR OPINION THAT HE

LACKED CAPACITY?

A IN MY OPINION, YES.

Q WHY?

A IN MY OPINION, THIS IS A VERY

COMPLICATED -- IN MY OPINION, THIS IS A VERY COMPLICATED

DECISION THAT HE MADE. IN MY OPINION, IT DEMONSTRATES

THAT IT WAS A VERY PRECIPITOUS AND NOT VERY THOUGHTFUL

OPINION OR DECISION. AND I THINK THE EVIDENCE IS THAT

HE REALLY DID NOT PAY ATTENTION TO MS. HERZER'S ROLE IN

HIS LIFE, EITHER PERSONALLY OR SPECIFICALLY IN TERMS OF

Exhibit B

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1

CASE NUMBER: BP168725

CASE NAME: SUMNER REDSTONE

LOS ANGELES, CALIFORNIA MAY 6, 2016

DEPARTMENT 79 DAVID J. COWAN, JUDGE

APPEARANCES: (AS HERETOFORE NOTED.)

REPORTER: TAMARA M. VOGL, CSR NO. 10186

TIME: P.M. SESSION

(THE FOLLOWING PROCEEDINGS WERE HELD IN

CLOSED SESSION WITH ATTORNEYS, TECHNICIANS

AND PARTIES PRESENT:)

THE COURT: GOOD AFTERNOON, EVERYBODY.

MS. VIDAL: GOOD AFTERNOON, YOUR HONOR.

THE COURT: ALL RIGHT. CONTINUE WITH DR. READ'S

EXAMINATION, AND DID YOU WANT TO PLAY THE AUDIO?

MR. O'DONNELL: YES, YOUR HONOR. AND I TOLD YOUR

CLERK WE MARKED THAT DELUSIONS CHART AS EXHIBIT 305, AND

I OFFER IT.

THE COURT: THANK YOU. FOR PURPOSES OF THE

RECORD, THE AUDIO IS NOT GOING TO BE TRANSCRIBED. SO

STIPULATED?

MR. RICHARDS: SO STIPULATED.

MR. O'DONNELL: I THINK I OFFERED THE ENTIRE AUDIO

IN EVIDENCE.

THE COURT: HOW LONG IS IT?

MR. O'DONNELL: THERE IS JUST A FEW MINUTES. THE

HOUR EXAM IS JUST AN HOUR. THESE ARE JUST A FEW THINGS,

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Q AND WHAT DO YOU UNDERSTAND BY JEREMY NOW

BRIEFING MR. REDSTONE ON THE DAY'S EVENTS?

A I WAS STRUCK BY THE USE OF THE WORD

"BRIEFING." AND IN THIS SITUATION BRIEFING WOULD

SUGGEST TO ME THAT THE INTENT OF THE WORD AS THAT

MR. REDSTONE NEEDED TO BE INFORMED ABOUT THE DAY'S

EVENTS AGAIN SHORTLY, VERY SHORTLY AFTER IT OCCURRED.

AND SO THE QUESTION WAS WHY WOULD MR. REDSTONE NEED

BRIEFING AT THIS STAGE OF THE GAME. MY FIRST THOUGHT.

Q HOW DID THAT PLAY INTO YOUR OPINION ABOUT

HIS COGNITIVE DEFICIENCIES?

A WELL, IF HE'D REALLY FORGOTTEN, IF

JEREMY -- AND I UNDERSTOOD JEREMY TO REFER TO THE OTHER

NURSE, MR. JAGIELLO -- IF MR. REDSTONE REALLY DIDN'T

REMEMBER WHAT HAD HAPPENED EARLIER IN THE DAY, THAT

WOULD BE A VERY SERIOUS CONCERN ABOUT MEMORY AND ABOUT

HIS -- AND NOT COINCIDENTALLY RELATED TO THE ROLE MEMORY

IS NECESSARY IF YOU'RE GOING TO PLAN, ORGANIZE AND CARRY

OUT ACTIONS IN YOUR OWN RATIONAL SELF-INTEREST. SO THAT

WORD STOOD OUT AS AN INITIAL COMMENT.

Q AND MR. FERRER QUOTING IN THIS NOTE

JEREMY'S CONVERSATION, SINGLE QUOTE, 'MR. REDSTONE,

MANUELA WAS STEALING MILLIONS OF DOLLARS FROM YOU.' DO

YOU SEE THAT?

A I DO.

Q NOW IN TERMS OF SUSCEPTIBILITY TO UNDUE

INFLUENCE, IF MR. REDSTONE WAS IN FACT TOLD THIS

AFTERNOON THAT MANUELA WAS STEALING MILLIONS OF DOLLARS

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FROM YOU, HOW, IF AT ALL, WOULD THAT IMPACT ON HIS

DECISION TO EVICT HER FROM THE HOME?

MR. KLIEGER: OBJECTION, YOUR HONOR. THERE'S BEEN

A STIPULATION AS TO SUSCEPTIBILITY TO UNDUE INFLUENCE.

I DON'T SEE HOW THIS IS RELEVANT, AND IT'S CERTAINLY

CUMULATIVE TO WHAT'S BEEN PUT ON.

MR. O'DONNELL: MAY I RESPOND?

THE COURT: YES.

MR. O'DONNELL: THIS IS IMPORTANT. IT'S A FACTOR.

I'M NOT SAYING IS THIS THE KIND OF FACTOR THAT IS PART

OF THE SUSCEPTIBILITY. THAT'S ALL I'M ASKING, NOT FOR

THE ULTIMATE CONCLUSION.

THE COURT: I'LL ALLOW IT. OVERRULED.

THE WITNESS: WELL, IN MY OPINION THIS NOTE

DOCUMENTS AN EXCHANGE THAT WOULD BE THE KIND OF EXCHANGE

THAT WOULD CHARACTERIZE INFLUENCE WHEN IT DOES HAPPEN.

THAT'S WITHOUT TAKING A POSITION BECAUSE I DON'T KNOW

WHAT MR. JAGIELLO'S PURPOSE MIGHT HAVE BEEN AT THIS

MOMENT. BUT AGAIN, I MADE MY COMMENTS ON BRIEFING AND

THE EFFECT -- IF MR. JAGIELLO FELT IT NECESSARY TO BRIEF

MR. REDSTONE, I.E., TO REMIND HIM OF WHAT WAS GOING ON

AND WHY AND SAYING THAT MANUELA WAS QUOTE "STEALING"

UNQUOTE MILLIONS OF DOLLARS, THAT WOULD BE -- AT LEAST

COULD HAVE BEEN CALCULATED TO ELICIT A SPECIFIC RESPONSE

AND THE ANGER AND TO INCREASE THE JUSTIFICATION

THAT MR. REDSTONE -- SOMEONE MIGHT HAVE FELT

THAT MR. REDSTONE NEEDED TO FEEL ABOUT MS. HERZER.

Q MAYBE REINFORCE IT?

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A YES.

Q NOW YOU TESTIFIED TOWARDS THE END OF

MR. KLIEGER'S CROSS-EXAMINATION THAT IN YOUR OPINION

MR. REDSTONE LITERALLY UNDERSTOOD THAT HE WAS SIGNING A

DOCUMENT THAT REMOVED MANUELA AS HIS AGENT. DO YOU

REMEMBER THAT?

A YES.

Q THAT HE LITERALLY UNDERSTOOD?

A YES.

Q DOES THAT MEAN IN YOUR OPINION THAT HE

FULLY COMPREHENDED WHAT HE WAS DOING?

A NO.

Q THAT HE UNDERSTOOD THE CONSEQUENCES OF WHAT

HE WAS DOING?

A NO.

Q IN YOUR EXPERIENCE CAN PEOPLE SIGN

DOCUMENTS KNOWING THAT IT'S A WILL OR A CONTRACT BUT NOT

REALLY APPRECIATE WHAT THEY'RE IN FACT DOING?

A I THINK THAT'S EMBARRASSINGLY COMMON

ACTUALLY.

Q I WANT TO FOCUS ON SOMETHING FOR A MOMENT

HERE. THE DOCUMENT THAT HE SIGNED -- I'VE GOT A VERY

CRUDE GRAPHIC, YOUR HONOR, BECAUSE WE ARE ON A BUDGET

HERE. OCTOBER 10, THAT'S A SATURDAY. WE'LL TALK ABOUT

THAT. THEN THERE'S MONDAY, OCTOBER 12. SOMETHING ELSE

ON OCTOBER 12, AND THEN FOUR DAYS LATER WE HAVE

OCTOBER 16. THAT'S ALL 2015. DO YOU SEE THAT?

A I DO.

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TIME, I DON'T WANT TO BE FRANKLY REACTING TOO STRONGLY

TO ONE WITNESS'S TESTIMONY.

ON THE OTHER HAND, I'M SPEAKING OUT LOUD,

WHICH IS VERY DIFFICULT WHEN I KNOW THERE ARE A ROOM

FULL OF REPORTERS, BUT AT THE SAME TIME IT'S MY JOB, SO

I MIGHT AS WELL JUST DO MY JOB. I'D LIKE BOTH SIDES TO

PRESENT TO ME BY MONDAY MORNING WHAT EVIDENCE DR. READ

HAS PRESENTED THAT REBUTS THE PRESUMPTION AND WHAT

EVIDENCE THERE IS THAT MR. REDSTONE WAS UNDER UNDUE

INFLUENCE. WE HAVE A STIPULATION THAT HE'S SUSCEPTIBLE

TO IT, SO THAT'S NO LONGER AT ISSUE. BUT THE EVENTS

THAT TRANSPIRED IN OCTOBER AND NOW SIX MONTHS AGO. WHAT

EVIDENCE DO I HAVE THAT MR. REDSTONE CONTINUES TO BE, IF

HE EVER WAS, UNDULY INFLUENCED BY SOMEBODY.

ON THE OTHER HAND, TO BE FAIR I THINK THAT

ONE AREA THAT THE COURT HAS CONCERN ABOUT IS I THINK

THAT PETITIONER HAS PUT FORTH SOME ARGUMENT THAT WE

DON'T KNOW HOW MUCH MR. REDSTONE APPRECIATES WHAT HE'S

SAYING. IN OTHER WORDS, WHEN SOMEBODY HAS DEMENTIA, AS

I UNDERSTAND IT, THEY FORGET WHAT MAY HAVE HAPPENED TO

THEM. AND I THINK AS SOMEBODY HAS PUT IT THAT PEOPLE'S

REACTIONS -- WE ALL HAVE REACTIONS TO THINGS. IT SOUNDS

LIKE MR. REDSTONE TENDED TO REACT STRONGLY ABOUT CERTAIN

THINGS, WHICH IS FINE. BUT THE QUESTION, THE MORE

DIFFICULT QUESTION IS, IS HE JUST REACTING STRONGLY OR

DOES HE KNOW WHAT HE'S DOING WHEN HE'S REACTING

STRONGLY. I THINK THAT'S WHAT I'M WRESTLING WITH.

I THINK THAT MR. REDSTONE DID STATE THAT HE

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REDIRECT EXAMINATION (CONTINUED)

BY MR. O'DONNELL:

Q DR. READ, WITH THE FACTS OF THIS CASE IN

MIND AND THE TIME LINE THAT WE HAVE HERE. OKAY?

A YES.

Q IN YOUR EXPERIENCE HAVE YOU SEEN THAT A

VICTIM OF UNDUE INFLUENCE BELIEVES THAT WHAT HE'S DOING

IS ACTUALLY OF HIS OWN FREE WILL?

A IN MY EXPERIENCE THAT IS ALMOST ALWAYS THE

CASE, THAT THE PERSON EXPERIENCES WHAT THEY'VE BECOME

INFLUENCED TO SAY OR TO FEEL, THAT BECOMES A GENUINE

FEELING FOR THEM. SO THEN WHEN THEY EXPRESS IT, THAT'S

THE WAY THEY EXPERIENCE IT. THEY BELIEVE IT'S THEIR

TRUE VOLUNTARILY COME TO DECISION AND FEELING.

Q AND IT CONTINUES THAT FEELING?

A WELL, CONTINUE IT, AND I THINK YOU

MENTIONED THE POSSIBILITY THAT THERE HAD BEEN

OPPORTUNITIES FOR REENFORCEMENTS OF THOSE FEELINGS THAT

OF COURSE WOULD FAVOR THAT AS WELL.

Q AND MS. HERZER NEVER HAD AN OPPORTUNITY TO

MEET WITH MR. REDSTONE DESPITE MANY REQUESTS TO TALK TO

HIM ABOUT WHAT HAPPENED, IS THAT ANOTHER FACTOR THAT

WOULD REINFORCE THAT HIS VIEWS ARE MAINTAINED?

A YES.

MR. O'DONNELL: THANK YOU, YOUR HONOR.

THE COURT: MR. KLIEGER?

MR. KLIEGER: JUST ONE QUESTION.

Exhibit C

249

1 SUPERIOR COURT OF THE STATE OF CALIFORNIA

2 COUNTY OF LOS ANGELES

3

4 In re: Case No. BP168725

5ADVANCE HEALTHCARE

6 DIRECTIVE OF SUMNER M.REDSTONE

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12 ____________________________________________________

13

14

15 CONFIDENTIAL SUBJECT TO PROTECTIVE ORDER

16 VIDEOTAPED DEPOSITION of J. EDWARD SPAR, M.D.

17 LOS ANGELES, CALIFORNIA

18 THURSDAY, MAY 5, 2016

19 VOLUME 2

20

21

22

23 Reported by

24 Daryl Baucum, RPR, CRR, RMR, CSR No. 10356

25 Job No. 2306402, PAGES 249 - 341

[5/5/2016] Spar, James E. (Vol. 02) - 05/05/2016 - FINAL

Petitioner Response Re Motion to Dismiss via The Hollywood Reporter

Documents

Transcript of Petitioner Response Re Motion to Dismiss via The Hollywood Reporter