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1900 Avenue of the Stars, 21st Floor
Los Angeles, California 90067-4590

GREENBERG GLUSKER FIELDS CLAMAN


& MACHTINGER LLP

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BERTRAM FIELDS (SBN 024199)


BFields@GreenbergGlusker.com
PIERCE ODONNELL (SBN 081298)
PODonnell@GreenbergGlusker.com
MARC M. STERN (SBN 126409)
MStern@GreenbergGlusker.com
PAUL A. BLECHNER (SBN 159514)
PBlechner@GreenbergGlusker.com
BERNARD RESSER (SBN 92873)
BResser@GreenbergGlusker.com
ELISABETH A. MORIARTY (SBN 156569)
EMoriarty@GreenbergGlusker.com
IRA M. STEINBERG (SBN 273997)
ISteinberg@GreenbergGlusker.com
TIMOTHY J. TOOHEY (SBN 140117)
TToohey@GreenbergGlusker.com
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)
ron@ronaldrichards.com
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

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SUPERIOR COURT OF THE STATE OF CALIFORNIA
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COUNTY OF LOS ANGELES
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In re

Case No. BP168725

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ADVANCE HEALTH CARE


DIRECTIVE OF SUMNER M.
REDSTONE

[Assigned to The Hon. David J. Cowan,


Department 79)

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PETITIONERS RESPONSE TO
COUNSELS RENEWED MOTION TO
DISMISS; DECLARATION OF BERNARD
M. RESSER

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Shortened Hearing Date: May 9, 2016


Time: 8:30 a.m.
Dept.: 79

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35882-00002/2585253.7

PETITIONERS RESPONSE TO COUNSELS RENEWED MOTION TO DISMISS

1900 Avenue of the Stars, 21st Floor


Los Angeles, California 90067-4590

INTRODUCTION

The Court has asked why it is in Redstones 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:

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I.

First, the Court cannot terminate the trial by accepting at face value Redstones 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 Redstones

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,

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

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Court needs to hear all of Herzers evidence.

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

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Redstones best interests because, if his decisions are the product of mental illness or undue

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

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serves as Redstones health care agent matters. And, although the logical outcome following the

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

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

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

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light of the evidence of Redstones current animosity toward Herzer.

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The Court also needs to hear the substantial evidence why Shari Redstone is manifestly

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unfit to serve as Redstones health care agent. Herzer proffers that the evidence will show that

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Shari's unfitness is not merely geographical but also warranted because of (1) her demonstrated,

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profoundly different views than her father about end-of-life decisions, (2) her history of

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estrangement from her father and their suspicious recent reconciliation, and (3) her active

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campaign of spying against her father and violating his privacy on a grand scale.

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In the interests of justice, as well as Redstones 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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PETITIONERS RESPONSE TO COUNSELS RENEWED MOTION TO DISMISS

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.

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

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THE COURT NEEDS TO LOOK BEYOND REDSTONES TESTIMONY

issues regarding capacity and undue influence in light of Redstones videotaped testimony.

Although the Court stated that it did not want to be reacting too strongly to one witnesss

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

questioned whether Redstones 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

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

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

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thats strong evidence. (Morning Transcript at 32:16-17; see also Afternoon Transcript at 64:25-

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

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strongly. I think thats what Im wrestling with.))

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

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to Redstone, rather than looking at Redstones testimony in a vacuum or in isolation.1 The salient

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question before the Court is not only what Redstone said, but also whether Redstone fully

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appreciates what he said, and whether he has been unduly influenced to make those statements,

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however strongly he may have spoken. Although Redstone speaks in disparaging and vulgar

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terms about Herzer, whom he once called the love of his life, the Court cannot assume that he

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was expressing his true wishes and beliefs, particularly when those statements were only

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intelligible to his speech therapist.


Redstones angry outbursts and frequent use of profanity do not mean that the responses

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reflected his true feelings. As Dr. Read has attested, Redstones vehement and vulgar

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statements may be the result of Redstones serious cognitive impairment and continued undue

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

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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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PETITIONERS RESPONSE TO COUNSELS RENEWED MOTION TO DISMISS

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.

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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 Redstones lack of capacity.

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

of cognitive impairment because,

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at a minimum it doesnt take into account the 17 years minus a couple of days that

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

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

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

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

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delusional, yes.

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Morning Transcript 78:5-13.

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Redstones outbursts against Herzer in his videotaped deposition thus do not indicate that

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

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Redstones true wishes would repudiate the purposes of Probate Code 4609 and expose

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vulnerable individuals to the possibility of exploitation by others.

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

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

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

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

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Redstones statements were unintelligible to everyone else. Furthermore, as the Court is aware, at

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several points when questioned by Counsel, Redstones speech therapist anticipated the answer

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As experts for both sides now agree, a contractual capacity standard applies to execute or revoke
a health care directive.
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PETITIONERS RESPONSE TO COUNSELS RENEWED MOTION TO DISMISS

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

answers without the interposition of the translation by Redstones 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 Petitioners counsel and Mr. ODonnells 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 Herzers counsel, yet seemingly

nailed the questions posed by Counsel. The disparity between Redstones responses to

questions from Herzers counsel and his responses to questions from Counsel strongly suggest

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

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

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

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

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danger of uncritically accepting that Redstones testimony demonstrates what he wants may be

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

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

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

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

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testators intent in the narrow sense that the words in the will are clear and unambiguous. See,

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

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

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will on the ground that it was the result of lack of capacity and undue influence by the testators

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

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

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In contrast, Counsel trivializes the serious allegations of undue influence when it likens
Redstones 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 Counsels 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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PETITIONERS RESPONSE TO COUNSELS RENEWED MOTION TO DISMISS

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Los Angeles, California 90067-4590

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Similarly, the Court should not give credence to Redstones statement simply because the

speech therapists 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 therapists

translation of Redstones 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 Courts determinations

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

before the Court accepts the speech therapists "translation" as the final word. In short, the Court

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

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statements, not just the statements themselves.

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

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

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

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

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

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

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III.

THE PROCEEDINGS ARE REASONABLY NECESSARY TO PROTECT

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REDSTONES WELFARE

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

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

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

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

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

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

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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 Herzers
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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PETITIONERS RESPONSE TO COUNSELS RENEWED MOTION TO DISMISS

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 Redstones best interests to determine who is best suited to serve as

Redstones 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.

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

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three witnesses, the evidence regarding whether Redstones decisions are the product of lack of

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capacity or undue influence are far from decided. Yet, Counsels renewed motion to dismiss

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

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

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

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

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

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Dismiss Ruling) at 11 (It will therefore be the Courts primary task at trial to determine which

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of these physicians most accurately states Redstones mental status. Depending on which one the

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

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

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A.

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

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impairment, but disagree as to the degree of that impairment and its effect on competent decision-

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A Full Trial Is Needed On the Issue of Capacity

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.
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Moreover, for purposes of preserving the record, Herzer raises again her more general objection
to Counsels 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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PETITIONERS RESPONSE TO COUNSELS RENEWED MOTION TO DISMISS

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. Reads 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

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Dr. Read testified that Redstones mental status was severely compromised and
compromised to a degree that in my opinion he did not have the requisite mental capacity to

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

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October 16 of 2015. Morning Transcript 41:2-7. In comparison to Dr. Spars report, which

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

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

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

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

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

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

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

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

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

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testimony at trial on lack of capacity.)

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Herzer also has developed additional evidence regarding Redstones capacity which has

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

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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.

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At trial, the Court will hear that Dr. Spar corroborates the conclusions of Dr. Reads report in
substantial part.
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PETITIONERS RESPONSE TO COUNSELS RENEWED MOTION TO DISMISS

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

from percipient witnesses who will attest to Redstones ability (or inability) to currently make

decisions of his own free will.

B.

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

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A Full Trial Is Needed On the Issue of Undue Influence

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

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Dr. Reads compelling testimony and Joseph Octavianos disturbing admissions about Shari

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Redstones spy network, Herzer will show that Redstone was not only susceptible, but in fact

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

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

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from acting by overcoming that persons free will and results in inequity. Under this standard, a

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

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

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

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

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

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

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

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

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

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

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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.

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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

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

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

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. . . [M]aking necessarily difficult judgment calls about peoples motives and whether they are

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

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

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

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

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

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Indeed, such victims often believe its their true voluntarily come to decision and feeling. Id. at

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

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susceptible to undue influence.

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In addition to Dr. Reads testimony, there is substantial testimony that Redstone was

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

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

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criminal) conduct on the part of Redstones care-givers and staff at the instigation of Shari

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leading up to Herzers banishment. Octaviano testified that Redstones staff blatantly conspired

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with Shari Redstone to invade Redstones privacy and to exert undue influence over Redstone to

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remove Herzer as Redstones health care agent (and as Octavianos de facto boss). This

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testimony, which has not yet concluded, and the email communications undertaken furtively and
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PETITIONERS RESPONSE TO COUNSELS RENEWED MOTION TO DISMISS

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

iceberg. Nurse Octavianos 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 Herzers claim of undue influence..

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

influence includes the briefing of Redstone on the very day of Herzers 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 days

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

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

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

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

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One of the questions that the Court must answer is whether Redstones statements today are his

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

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

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

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

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betrayed him after 17 years of loyalty.

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Undue influence was further confirmed by Octavianos testimony regarding Jagiellos

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

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

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the actions of Redstones staff and nurses, including enlisting them as spies transmitting private

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

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show that Redstones staff and nurses have continued to reinforce their views regarding Herzers

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removal on Redstone all at the behest of Shari Redstone.

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As the evidence has already shown and will continue to show, not only was Redstones

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change in his Advance Health Care Directive the product of undue influence, but that decision
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PETITIONERS RESPONSE TO COUNSELS RENEWED MOTION TO DISMISS

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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 Redstones testimony

in Thursdays deposition. If Redstones 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

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

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

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IV.

THE COURT MUST HEAR SUBSTANTIAL EVIDENCE TO ADDRESS WHO

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SHALL SERVE AS REDSTONES HEALTH CARE AGENT

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

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

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

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

18

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

19

Dismiss Ruling:

20

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

21

contrary to Redstones purported wishes. This in any event asks the Court to

22

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

23

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

24

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

25

trial. Though it would not necessarily entail Herzer returns to Redstones home,

26

the Court recognizes that the situation here is not simple.

27

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

28

hold trials: to weigh competing claims, to evaluate credibility of witnesses testifying in front of
35882-00002/2585253.7

11

PETITIONERS RESPONSE TO COUNSELS RENEWED MOTION TO DISMISS

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).

1900 Avenue of the Stars, 21st Floor


Los Angeles, California 90067-4590

GREENBERG GLUSKER FIELDS CLAMAN


& MACHTINGER LLP

The difficulty of fashioning a remedy, such as reinstating Herzer as Redstones 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 Redstones health care to Shari Redstone. Not only did Shari Redstone instigate staff

10

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

11

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

12

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

13

that saved Redstones life).

14

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

15

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

16

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

17

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

18

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

19

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

20

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

21

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

22

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

23

toward Herzer.

24

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

25

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

26

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

27

a web of deceit.

28
35882-00002/2585253.7

12

PETITIONERS RESPONSE TO COUNSELS RENEWED MOTION TO DISMISS

1900 Avenue of the Stars, 21st Floor


Los Angeles, California 90067-4590

GREENBERG GLUSKER FIELDS CLAMAN


& MACHTINGER LLP

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

Redstones health care agent. While Herzer has shown herself repeatedly to have Redstones 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 Redstones

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 Redstones

10

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

11

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

12

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

13

will testify to Redstones capacity and/or the presence of undue influence.

14

V.

DISMISSAL AT THIS STAGE WOULD SET AN UNFORTUNATE PRECEDENT

15

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

16

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

17

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

18

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

19

lawyer. This occurred when there is no dispute about Redstones capacity or undue influence,

20

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

21

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

22

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

23

objected to the feeding tube, citing her own religious convictions that differed from Redstones

24

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

25

saving Redstones life.9

26

27
28

Counsels 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 Redstones
demands regarding the feeding tube.

35882-00002/2585253.7

13

PETITIONERS RESPONSE TO COUNSELS RENEWED MOTION TO DISMISS

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.

1900 Avenue of the Stars, 21st Floor


Los Angeles, California 90067-4590

GREENBERG GLUSKER FIELDS CLAMAN


& MACHTINGER LLP

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

challenge an AHCDmerely 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

10

disputed factswould be an unfortunate precedent and in this case, a disservice to Redstone

11

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

12

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

13

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

14

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

15

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

16

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

17

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

18

here.

19
20

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,

21
22
23
24
25
26
27
28

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.

35882-00002/2585253.7

14

PETITIONERS RESPONSE TO COUNSELS RENEWED MOTION TO DISMISS

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.

4
5

result that is not in Redstone's best interests.

VI.

1900 Avenue of the Stars, 21st Floor


Los Angeles, California 90067-4590

GREENBERG GLUSKER FIELDS CLAMAN


& MACHTINGER LLP

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

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

10

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

11

claims are, indeed, meritorious.

12
13

DATED: May 8, 2016

GREENBERG GLUSKER FIELDS CLAMAN


& MACHTINGER LLP

14
15

By:
BERTRAM FIELDS (SBN 024199)
PIERCE ODONNELL (SBN 081298)
MARC M. STERN (SBN 126409)
PAUL A. BLECHNER (SBN 159514)
IRA M. STEINBERG (SBN 273997)

16
17
18

Attorneys for Petitioner Manuela Herzer

19
20
21
22
23
24
25
26
27
28
35882-00002/2585253.7

15

PETITIONERS RESPONSE TO COUNSELS RENEWED MOTION TO DISMISS

Exhibit A

1
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

8
9

(THE FOLLOWING PROCEEDINGS WERE HELD IN OPEN COURT:)

10
11

THE COURT:

(ALL REPLY "GOOD MORNING.")

12
13

GOOD MORNING, EVERYBODY.

THE COURT:

I'M GOING TO CALL THE REDSTONE CASE,

14

BP168725.

15

THEIR APPEARANCES.

16
17
18
19
20
21
22
23
24
25
26
27
28

I'LL ASK COUNSEL STARTING TO MY RIGHT TO MAKE

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

32
1

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

AND I'M THE DECISION-MAKER HERE.

THAT TESTIMONY SHOULD NOT BE RESPECTED AT THE END OF THE

DAY.

MR. O'DONNELL:

I WANT TO KNOW WHY

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

10

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

11

CLOSING CASE THAT THE EXAMINATION FROM COUNSEL WAS

12

PROGRAMMED AND REHEARSED?

13

THE COURT:

I WANT THIS TRIAL I BELIEVE UNLESS I'M

14

PERSUADED OTHERWISE, AS I SAID AT THE BEGINNING, TO

15

FOCUS ON HIS WELFARE.

16

DEPOSITION THAT YOU'VE REQUESTED.

17

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

18

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

19

SIDES' OPENING STATEMENTS THAT I'M NOT REALLY

20

NECESSARILY INCLINED TO HEAR.

21

TESTIMONY SHOWS THAT HE LACKS CAPACITY OR HE'S UNDER

22

UNDUE INFLUENCE.

23

YESTERDAY, YOU NEVER KNOW WHAT HAPPENS IN A TRIAL.

24

KNOW YOU KNOW HOW TO THINK ON YOUR FEET.

25

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

26

WHAT HE HAD TO SAY.

27
28

AND HE'S BEEN THROUGH A DIFFICULT


HE'S TOLD ME NOW THE

I WANT TO KNOW WHY THAT

AND I WANT YOU, AS I SAID TO YOU

MR. O'DONNELL:

WELL.

AND I WANT YOU

I THINK YOU SHOULD LISTEN

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

41
1

WHAT IS YOUR OPINION?

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.

8
9
10

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?

11

I DO.

12

WHAT IS YOUR OPINION?

13

MY OPINION IS MR. REDSTONE IS EXTREMELY

14

VULNERABLE TO INFLUENCE AND THEREFORE UNDUE INFLUENCE ON

15

OCTOBER 16 OF 2015.

16

AND FINALLY, DO YOU HAVE AN OPINION WHY

17

YOUR OPINION SHOULD BE ENTITLED IN THE COURT'S EYES

18

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

19

HEAR ABOUT LATER?

20

I DO.

21

WHAT IS THAT?

22

I THINK THAT MY OPINION IS BASED ON A MUCH

23

MORE THOROUGH EVALUATION OF MENTAL FUNCTIONS OF

24

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

25

WHERE THERE WAS GENERAL AGREEMENT THAT THERE WAS NO

26

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

27

OBSERVATION, POSSIBLY EVEN SOME IMPROVEMENT IN THE

28

INTERVAL FROM OCTOBER TO DECEMBER OF 2015.

SO I BELIEVE

42
1

MY OPINION IS RELEVANT.

MY FINDINGS ARE EXTREMELY

RELEVANT TO THE DATES OF OCTOBER 16.

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.

AND IN ADDITION,

DID YOU PREPARE A REPORT THAT DETAILS YOUR

CONCLUSIONS?

I DID.

10

WOULD YOU TAKE A LOOK AT EXHIBIT 175,

11

PLEASE.

IT WILL BE ON THE SCREEN.

12

(EXHIBIT NO. 175 WAS MARKED

13

FOR IDENTIFICATION.)

14

THE COURT:

15

MR. O'DONNELL:

16

THE WITNESS:

17

THIS IS THE FIRST PAGE.

18

BY MR. O'DONNELL:

19
20
21
22
23

YOU MADE IT EASY FOR ME.


I TOLD YOU I WAS GOING TO DO THAT.
THE FIRST PAGE SHOWED UP ON MINE.

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

24

SUMMARIZES YOUR OBSERVATIONS, FINDINGS, CONCLUSIONS

25

BASED ON YOUR EXAMINATION AND THE OTHER FACTORS RECITED

26

IN THE REPORT?

27

IT IS.

28

NOW YOU PERFORMED A MENTAL STATUS

73
1

ROOM WHERE WE WERE SITTING, AND HE INDICATED YES.

DIDN'T ASK HIM TO POINT TO SPECIFIC PEOPLE.

WAS MR. JAGIELLO IN THE ROOM?

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

OKAY.

6
7

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

10

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

11

AND PERSISTENT OR RECURRENT MOOD STATE."

12

MR. REDSTONE IN MY OPINION DOES NOT HAVE CONVENTIONALLY

13

WHAT WE WOULD DESCRIBE AS A MOOD DISORDER, WHICH WOULD

14

BE A STATE OF PERVASIVE DEPRESSION, FOR EXAMPLE.

15

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

16

SERIOUS PROBLEM WHICH ARE THESE OUTBURSTS, THESE

17

UNCONTROLLABLE OUTBURSTS OF ANGER WHICH ARE VERY SEVERE

18

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

19

WITH IN A REASONABLE FASHION TO CONSIDER REASON,

20

ET CETERA.

21

RECURRENT EMOTIONAL STATE THAT'S INAPPROPRIATE IN DEGREE

22

TO HIS CIRCUMSTANCES.

BUT

SO IN MY OPINION THAT ACCOUNTS AS A

23

E?

24

E IS A CRITERIA.

AND AGAIN, WHICH IS --

25

THIS IS PARTICULARLY IN EVIDENCE FOR A CONSERVATORSHIP,

26

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

27

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

28

TRANSIENT STATE, WHICH I DISCUSSED EARLIER, WHERE

78
1

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?

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.

EXTENT, IT NEGLECTS THIS HUGE OTHER BODY OF EXPERIENCE

THAT HE HAD.

SO TO THAT

AND HIS INABILITY TO CONSIDER THAT, AND IN

10

MY OPINION HE HAD AN INABILITY TO CONSIDER THAT BECAUSE

11

OF THE SHORT-CIRCUITING OF HIS REASONING, HIS REASONING

12

IS IMPAIRED ANYWAY AND HIS EMOTIONS TAKE OVER SO

13

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

14

AND IN TERMS OF THEN FOCUSING, AS HIS HONOR

15

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

16

TOLD INFORMATION PEJORATIVE, NEGATIVE TO MS. HERZER AND

17

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

18

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

19

LACKED CAPACITY?

20

IN MY OPINION, YES.

21

WHY?

22

IN MY OPINION, THIS IS A VERY

23

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

24

DECISION THAT HE MADE.

25

THAT IT WAS A VERY PRECIPITOUS AND NOT VERY THOUGHTFUL

26

OPINION OR DECISION.

27

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

28

HIS LIFE, EITHER PERSONALLY OR SPECIFICALLY IN TERMS OF

IN MY OPINION, IT DEMONSTRATES

AND I THINK THE EVIDENCE IS THAT

Exhibit B

1
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

8
(THE FOLLOWING PROCEEDINGS WERE HELD IN

9
10

CLOSED SESSION WITH ATTORNEYS, TECHNICIANS

11

AND PARTIES PRESENT:)

12
13

THE COURT:

GOOD AFTERNOON, EVERYBODY.

14

MS. VIDAL:

GOOD AFTERNOON, YOUR HONOR.

15

THE COURT:

ALL RIGHT.

16
17

CONTINUE WITH DR. READ'S

EXAMINATION, AND DID YOU WANT TO PLAY THE AUDIO?


MR. O'DONNELL:

YES, YOUR HONOR.

AND I TOLD YOUR

18

CLERK WE MARKED THAT DELUSIONS CHART AS EXHIBIT 305, AND

19

I OFFER IT.

20

THE COURT:

THANK YOU.

FOR PURPOSES OF THE

21

RECORD, THE AUDIO IS NOT GOING TO BE TRANSCRIBED.

22

STIPULATED?

23

MR. RICHARDS:

24

MR. O'DONNELL:

25

SO

SO STIPULATED.
I THINK I OFFERED THE ENTIRE AUDIO

IN EVIDENCE.

26

THE COURT:

HOW LONG IS IT?

27

MR. O'DONNELL:

28

HOUR EXAM IS JUST AN HOUR.

THERE IS JUST A FEW MINUTES.

THE

THESE ARE JUST A FEW THINGS,

54
1
2
3

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."

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.

10
11
12

AND IN THIS SITUATION BRIEFING WOULD

MY FIRST THOUGHT.

HOW DID THAT PLAY INTO YOUR OPINION ABOUT

HIS COGNITIVE DEFICIENCIES?


A

WELL, IF HE'D REALLY FORGOTTEN, IF

13

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

14

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

15

REMEMBER WHAT HAD HAPPENED EARLIER IN THE DAY, THAT

16

WOULD BE A VERY SERIOUS CONCERN ABOUT MEMORY AND ABOUT

17

HIS -- AND NOT COINCIDENTALLY RELATED TO THE ROLE MEMORY

18

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

19

OUT ACTIONS IN YOUR OWN RATIONAL SELF-INTEREST.

20

WORD STOOD OUT AS AN INITIAL COMMENT.

21

SO THAT

AND MR. FERRER QUOTING IN THIS NOTE

22

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

23

MANUELA WAS STEALING MILLIONS OF DOLLARS FROM YOU.'

24

YOU SEE THAT?

25

I DO.

26

NOW IN TERMS OF SUSCEPTIBILITY TO UNDUE

DO

27

INFLUENCE, IF MR. REDSTONE WAS IN FACT TOLD THIS

28

AFTERNOON THAT MANUELA WAS STEALING MILLIONS OF DOLLARS

55
1

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:

THE COURT:

MR. O'DONNELL:

MAY I RESPOND?

YES.
THIS IS IMPORTANT.

IT'S A FACTOR.

10

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

11

OF THE SUSCEPTIBILITY.

12

THE ULTIMATE CONCLUSION.

13

THE COURT:

14

THE WITNESS:

THAT'S ALL I'M ASKING, NOT FOR

I'LL ALLOW IT.

OVERRULED.

WELL, IN MY OPINION THIS NOTE

15

DOCUMENTS AN EXCHANGE THAT WOULD BE THE KIND OF EXCHANGE

16

THAT WOULD CHARACTERIZE INFLUENCE WHEN IT DOES HAPPEN.

17

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

18

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

19

MOMENT.

20

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

21

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

22

AND WHY AND SAYING THAT MANUELA WAS QUOTE "STEALING"

23

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

24

COULD HAVE BEEN CALCULATED TO ELICIT A SPECIFIC RESPONSE

25

AND THE ANGER AND TO INCREASE THE JUSTIFICATION

26

THAT MR. REDSTONE -- SOMEONE MIGHT HAVE FELT

27

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

28

BUT AGAIN, I MADE MY COMMENTS ON BRIEFING AND

MAYBE REINFORCE IT?

56
1

YES.

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.

REMEMBER THAT?

DO YOU

YES.

THAT HE LITERALLY UNDERSTOOD?

YES.

10

DOES THAT MEAN IN YOUR OPINION THAT HE

11

FULLY COMPREHENDED WHAT HE WAS DOING?

12

NO.

13

THAT HE UNDERSTOOD THE CONSEQUENCES OF WHAT

14

HE WAS DOING?

15

NO.

16

IN YOUR EXPERIENCE CAN PEOPLE SIGN

17

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

18

REALLY APPRECIATE WHAT THEY'RE IN FACT DOING?


A

19
20

I THINK THAT'S EMBARRASSINGLY COMMON

ACTUALLY.
Q

21

I WANT TO FOCUS ON SOMETHING FOR A MOMENT

22

HERE.

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

24

HERE.

OCTOBER 10, THAT'S A SATURDAY.

25

THAT.

THEN THERE'S MONDAY, OCTOBER 12.

26

ON OCTOBER 12, AND THEN FOUR DAYS LATER WE HAVE

27

OCTOBER 16.

28

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

THAT'S ALL 2015.


I DO.

WE'LL TALK ABOUT


SOMETHING ELSE

DO YOU SEE THAT?

64
1

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,

3
4

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.

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

I'D LIKE BOTH SIDES TO

10

INFLUENCE.

WE HAVE A STIPULATION THAT HE'S SUSCEPTIBLE

11

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

12

THAT TRANSPIRED IN OCTOBER AND NOW SIX MONTHS AGO.

13

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

14

HE EVER WAS, UNDULY INFLUENCED BY SOMEBODY.

BUT THE EVENTS


WHAT

ON THE OTHER HAND, TO BE FAIR I THINK THAT

15
16

ONE AREA THAT THE COURT HAS CONCERN ABOUT IS I THINK

17

THAT PETITIONER HAS PUT FORTH SOME ARGUMENT THAT WE

18

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

19

SAYING.

20

I UNDERSTAND IT, THEY FORGET WHAT MAY HAVE HAPPENED TO

21

THEM.

22

REACTIONS -- WE ALL HAVE REACTIONS TO THINGS.

23

LIKE MR. REDSTONE TENDED TO REACT STRONGLY ABOUT CERTAIN

24

THINGS, WHICH IS FINE.

25

DIFFICULT QUESTION IS, IS HE JUST REACTING STRONGLY OR

26

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

27

STRONGLY.

28

IN OTHER WORDS, WHEN SOMEBODY HAS DEMENTIA, AS

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


IT SOUNDS

BUT THE QUESTION, THE MORE

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


I THINK THAT MR. REDSTONE DID STATE THAT HE

70
REDIRECT EXAMINATION (CONTINUED)

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2
3
4

BY MR. O'DONNELL:
Q

DR. READ, WITH THE FACTS OF THIS CASE IN

MIND AND THE TIME LINE THAT WE HAVE HERE.

OKAY?

YES.

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?

IN MY EXPERIENCE THAT IS ALMOST ALWAYS THE

10

CASE, THAT THE PERSON EXPERIENCES WHAT THEY'VE BECOME

11

INFLUENCED TO SAY OR TO FEEL, THAT BECOMES A GENUINE

12

FEELING FOR THEM.

13

THE WAY THEY EXPERIENCE IT.

14

TRUE VOLUNTARILY COME TO DECISION AND FEELING.

SO THEN WHEN THEY EXPRESS IT, THAT'S


THEY BELIEVE IT'S THEIR

15

AND IT CONTINUES THAT FEELING?

16

WELL, CONTINUE IT, AND I THINK YOU

17

MENTIONED THE POSSIBILITY THAT THERE HAD BEEN

18

OPPORTUNITIES FOR REENFORCEMENTS OF THOSE FEELINGS THAT

19

OF COURSE WOULD FAVOR THAT AS WELL.

20

AND MS. HERZER NEVER HAD AN OPPORTUNITY TO

21

MEET WITH MR. REDSTONE DESPITE MANY REQUESTS TO TALK TO

22

HIM ABOUT WHAT HAPPENED, IS THAT ANOTHER FACTOR THAT

23

WOULD REINFORCE THAT HIS VIEWS ARE MAINTAINED?

24

25

MR. O'DONNELL:

26

THE COURT:

27

MR. KLIEGER:

28

YES.
THANK YOU, YOUR HONOR.

MR. KLIEGER?
JUST ONE QUESTION.

Exhibit C

249
1

SUPERIOR COURT OF THE STATE OF CALIFORNIA

COUNTY OF LOS ANGELES

3
4

In re:

Case No. BP168725

5
6

ADVANCE HEALTHCARE
DIRECTIVE OF SUMNER M.
REDSTONE

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8
9
10
11
12

____________________________________________________

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14
15

CONFIDENTIAL SUBJECT TO PROTECTIVE ORDER

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

17

LOS ANGELES, CALIFORNIA

18

THURSDAY, MAY 5, 2016

19

VOLUME 2

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21
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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