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1 Ekwan E. Rhow State Bar No.

174604
erhow@birdmarella.com
2 Hernn D. Vera State Bar No. 175149
hvera@birdmarella.com
3 Gabriela C. Rivera State Bar No. 283633
grivera@birdmarella.com
4 Nithin Kumar State Bar No. 300607
nkumar@birdmarella.com
5 BIRD, MARELLA, BOXER, WOLPERT, NESSIM,
DROOKS, LINCENBERG & RHOW, P.C.
6 1875 Century Park East, 23rd Floor
Los Angeles, California 90067-2561
7 Telephone: (310) 201-2100
Facsimile: (310) 201-2110
8
Ronald Richards State Bar No. 176246
9 ron@ronaldrichards.com
LAW OFFICES OF RONALD RICHARDS
10 & ASSOCIATES, A.P.C.
P.O. Box 11480
11 Beverly Hills, California 90213
Telephone: (310) 556-1001
12 Facsimile: (310) 277-3325
13 Attorneys for Defendant Manuela Herzer
14 SUPERIOR COURT OF THE STATE OF CALIFORNIA
15 COUNTY OF LOS ANGELES, CENTRAL DISTRICT
16 SUMNER REDSTONE, Case No. BC638054
[Related Case No. BC619766]
17 Plaintiff,
DEFENDANT MANUELA HERZERS
18 vs. NOTICE OF MOTION AND MOTION
FOR SUMMARY JUDGMENT;
19 MANUELA HERZER, et al., MEMORANDUM OF POINTS AND
AUTHORITIES IN SUPPORT
20 Defendants.
[Concurrently filed with Separate Statement
21 of Undisputed Material Facts; Declaration of
Hernan D. Vera; and [Proposed] Order]
22
Date: December 18, 2017
23 Time: 8:30 A.M.
Department: 24
24 Reservation ID: 170516219281
25 Assigned to Hon. Robert L. Hess
Action Filed: October 25, 2016
26
27 PUBLICREDACTS MATERIALS FROM
28 CONDITIONALLY SEALED RECORD

DEFENDANT MANUELA HERZERS MOTION FOR SUMMARY JUDGMENT


any
1 TABLE OF CONTENTS
Page
2
I. INTRODUCTION ...................................................................................................... 6
3
II. BACKGROUND FACTS .......................................................................................... 9
4
A. Herzers Almost 20 Years Of Friendship With Sumner ................................. 9
5
B. Sumners Regular Practice Of Making Large Gifts, Many Over $10M,
6 To Important People In His Life. .................................................................. 10
7 C. Sumners Unequivocal Intention To Make Valid Gifts To Herzer ............... 12
8 D. Sharis Criminal Conspiracy To Oust Herzer ............................................... 15
9 E. The Consistent Refusal By Sumners Attorneys To Allow Sumner To
Be Deposed, Undergo A Mental Examination, Or Testify ........................... 18
10
III. ARGUMENT............................................................................................................ 19
11
A. Legal Standard ............................................................................................... 19
12
B. Plaintiffs First Claim For Financial Elder Abuse Fails Because There
13 Is No Evidence Of Sumners State of Mind At the Time The Gifts At
Issue Were Made. .......................................................................................... 20
14
C. Plaintiffs Second Claim For Breach of Fiduciary Duty Similarly Fails
15 Because Sumner Cannot Prove Causation. ................................................... 21
16 D. Plaintiffs Third Claim For Constructive Fraud Fails Because There Is
No Evidence Of A Fraudulent Act, Nondisclosure, Or Reliance.................. 22
17
E. Plaintiffs Fourth Claim For Intentional Infliction of Emotional
18 Distress Fails As It Is Not Supported With Any Evidence From The
Alleged Victim. ............................................................................................. 23
19
IV. CONCLUSION ........................................................................................................ 23
20
21
22
23
24
25
26
27
28

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DEFENDANT MANUELA HERZERS MOTION FOR SUMMARY JUDGMENT
1 TABLE OF AUTHORITIES
2 Page(s)
3 Cases
4
Aguilar v. Atl. Richfield Co.
5 (2001) 25 Cal. 4th 826 ................................................................................................... 19
6 Barnes v. Dobbins
(1958) 159 Cal. App. 2d 737.......................................................................................... 22
7
8 Fletcher v. W. Natl Life Ins. Co.
(1970) 10 Cal. App. 3d 376............................................................................................ 23
9
Green v. Ralee Engineering Co.
10 (1998) 19 Cal. 4th 66 ..................................................................................................... 19
11
Leslie G. v. Perry & Assoc.
12 (1996) 43 Cal. App. 4th 472 .......................................................................................... 20
13 Lopez v. McDonalds Corp.
(1987) 193 Cal. App. 3d 495.......................................................................................... 19
14
15 Molko v. Holy Spirit Assn
(1988) 46 Cal. 3d 1092................................................................................................... 23
16
Prakashpalan v. Engstrom, Lipscomb & Lack
17 (2014) 223 Cal. App. 4th 1105, as modified on denial of rehg (Feb. 27,
18 2014) .............................................................................................................................. 22

19 Estate of Ricks
(1911) 160 Cal. 467........................................................................................................ 20
20
Estate of Sarabia
21
(1990) 221 Cal. App. 3d 599.......................................................................................... 20
22
Sumner Redstone v. Commissioner of Internal Revenue,
23 United States Tax Court, Docket No. 8097-13 ........................................................ 13, 16
24 Tribeca Cos., LLC v. First Am. Title Ins. Co.
25 (2015) 239 Cal. App. 4th 1088 ...................................................................................... 21

26 Tyler v. Childrens Home Socy


(1994) 29 Cal. App. 4th 51 ............................................................................................ 22
27
Union Bank v. Sup. Ct.
28
(1995) 31 Cal. App. 4th 573 .......................................................................................... 20
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1 Younan v. Equifax Inc.
(1980) 111 Cal. App. 3d 498.......................................................................................... 22
2
3 Statutes
4 Cal. Civ. Proc. Code 437c ................................................................................................ 19
5 Cal. Civ. Proc. Code 2032.010 ......................................................................................... 19
6 Cal. Welf. & Inst. Code 15610.30(a) ................................................................................ 20
7 Evidence Code 730 ........................................................................................................... 19
8
Other Authorities
9
https://www.youtube.com/watch?v=Ugaq_dENaA0 .......................................................... 10
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

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1 I. INTRODUCTION
2 This strategic litigation has now been exposed for what it is, a publicity vehicle
3 designed to disparage Defendant Manuela Herzer (Herzer) and ultimately perpetrate
4 a fraud on the judicial system. It is also a lawsuit still looking for an actual plaintiff. This
5 is because, despite demanding that Herzer pay tens of millions of dollars, purported
6 Plaintiff Sumner Redstone (Sumner)through his attorney Robert Kliegernow asserts
7 that he will not be testifying. (See Defendant Herzers Separate Statement of
8 Undisputed Facts (DSUF) 51.) With this remarkable admission, the question arises:
9 Who is controlling this lawsuit, and how could it have been filed if the purported plaintiff
10 is not able to provide evidence regarding his personal state of mind as required by his
11 claims? Perhaps the answer lies with Mr. Kliegers joint and conflicted representation of
12 Sumners daughter, Shari Redstone (Shari), who is now a beneficiary to Sumners trust,
13 and his personal participation in helping Shari take control of CBS, where he was placed as
14 a board member by Shari, and Viacom, where he soon will be.
15 Putting aside the true reasons which would explain why this complaint was filed,
16 the baseless and inflammatory allegations contained therein must nevertheless be
17 supported by actual evidence and tested in the crucible of summary judgment. Here, the
18 purported complaint asserts that Sumner did not approve of these gifts (or that he would
19 not have approved them had he known of unnamed misrepresentations by Herzer). But
20 the only admissible evidence on Sumners actual motives and intentions must come from
21 Sumner himself. That necessary evidence is wholly absent and will always be absent, as
22 Sumner will not testify that (1) he presently wants to revoke his gifts, (2) his free will in
23 making these gifts was overcome, and (3) he did not intend these gifts. In fact, in the
24 history of Mr. Redstones gift giving, he has never asked for a gift back. As each and
25 every claim in this action depends entirely on the express intentions of Sumner, and
26 having confirmed that no such testimony is forthcoming from Sumner, the purported
27 plaintiff cannot sustain his burden of proof.
28 The undisputed material facts would, in any event, independently support summary

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1 judgment even if Sumner did testify. They are as follows:
2 At the time Sumner made his gifts to Herzer, he was the chairman of the board of
3 both Viacom and CBS. Up through 2014, Sumner was personally attending CBS board
4 meetings and actively engaged in Viacom and NAI board activities. (DSUF 52.) The
5 boards of those companies authorized tens of millions of dollars in bonuses and
6 compensation for his active role in their management. (DSUF 52.) On the social scene, he
7 continued to be a very visible player in both Hollywood and New Yorkattending movie
8 premieres, rubbing elbows with renowned directors, producers, and actors, and keeping
9 a punishing schedule of social engagements, dinners, and outings.
10 His personal life during this period was equally occupied. The man universally
11 described as strong-willed, confident, and in control made it abundantly clear to the
12 world who he wanted to date, how he wanted to live his life, and how he wanted to spend
13 his money. Sumner made numerous charitable donations totaling hundreds of millions of
14 dollars and also gifted millions of dollars to his grandchildren in the 2014 time period.
15 Sumner also made no apologies about seeing numerous women during this period, and
16 lavishing on them generous multimillion-dollar gifts. Philippe Dauman, the longtime
17 president and CEO of Viacom and Sumners protg and co-trustee of his 2003 Trust,
18 recently testified in this case that Sumner
19 (DSUF 16.) In every
20 case, Sumners standard practice was to employ a battery of attorneys, bankers, staff, and
21 accountants to ensure that his intent was clearly understood and carried out. (DSUF 17.)
22 Sumners gifts to Herzer and her children were no different. Each and every gift
23 made by Sumner to benefit Herzer was reviewed, vetted, and approved by Sumners
24 retinue of estate planning attorneys, a UCLA Board Certified psychiatrist, and his personal
25 attorney David Andelman. Herzer did not take part in this vetting. To the contrary, she
26 was kept completely divorced from the process, which was handled by Sumners
27 independent professionals.
28 In fact, as to Herzer, Sumner employed an even more robust vetting process, that

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1 required six separate Certificates of Independent Review, conducted by two independent
2 estate planning attorneys, as well as two exhaustive examinations of Sumners existing
3 mental capacity by an independent medical doctor. (DSUF 21-22, 27, 30 & 15.) The
4 attorneys at Loeb & Loeb for Sumners estatewho are jointly representing Sumner with
5 Mr. Klieger in the related probate action and who Sumner presumably believes are
6 crediblereviewed the gifts and attested, separately and consistently, that the inter vivos
7 gift to Herzer was . (DSUF 15.) And the
8 doctor hired by Sumners lawyers came to the same conclusion that
9
10 (DSUF 26.) Sumners goal here was clear: he
11 wanted to fully protect the May 20, 2014 inter vivos gift to Herzer challenged in the
12 present action.
13 The extreme measures employed by Sumner were not accidental. He employed
14 them specifically to deter subsequent interference by his estranged daughter Shari. As
15 Dauman recalled during his deposition, at a face-to-face meeting in 2014,
16 Sumner
17 . (DSUF 56.) According to Dauman, Sumners
18 concern was that Shari would and that she
19 Shari herself acknowledged this in her own 2014 e-mail,
20 writing, all he kept saying was leave Sydney and Manuella [sic] alone. He said it 100
21 times. (DSUF 33.) But despite Sumners clear desires, Shari privately threatened that
22 [I] am going to go after them regardless of the strength of the case. (DSUF 44.)
23 Sharis words and Sumners concerns turned out to be tragically prophetic. A year
24 after ousting Herzer from the Sumner residence by means of a criminal campaign of
25 bribery and espionage, and after effecting a complete takeover of Sumners companies and
26 physical person, Shari and her lawyers orchestrated the present lawsuit, seeking to disavow
27 and undo all of the gifts to Herzer that Sumner had carefully put in place over many years.
28 Sharis goal, as stated in her own words, is clear:

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1
2 . (DSUF 42.)
3 Whether to answer Sharis attacks against his confirmed intentions or to rebut the
4 undisputed evidence relating to these gifts, this Court will never hear a single word from
5 the purported plaintiff. As such, it will remain undisputedas documented by his own
6 retained professionalsthat Sumner intended to give these gifts to Herzer and that he did
7 so freely and willingly. As these gifts were granted with a stringent and onerous process
8 with numerous checks and balances, summary judgment should be granted in favor of
9 Herzer as to all claims. By doing so, this Court can end this strategicand tragiclawsuit
10 that artificially places an unwilling plaintiff in the position of prosecuting claims he does
11 not support and to which he is unwilling to attest.
12 II. BACKGROUND FACTS
13 A. Herzers Almost 20 Years Of Friendship With Sumner
14 Herzer met Sumner at a dinner party in Los Angeles in 1999. At the time, Sumner
15 was going through a divorce and was the Executive Chairman of Viacom. Herzerwho
16 also was divorced and had three children from her previous marriageand Sumner dated
17 for about two years, after which Sumner proposed. Herzer declined the offer of marriage
18 and ended the relationship in 2001, but the two remained close friends even after Sumner
19 remarried in 2002.
20 For the next decade, Sumner and Herzers friendship continued to grow. Sumner
21 and Herzer routinely confided in each other regarding highly personal matters, including
22 their other relationships, and sought counsel from one another on countless other personal
23 and professional issues. Sumner was also close with Herzers three children and attended
24 family events with them. Both before and after his divorce in 2009, Sumner called Herzer
25 the love of his life, and they considered each other family. (DSUF 1.) Throughout the
26 years, and consistent with the deep love and affection that he had for Manuela and her
27 children, Sumner repeatedly amended his estate plan to make provisions for the care and
28 protection of Manuela and her familyas he did with others he cared about. As discussed

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1 below, Sumner had his estate plan amendments discussed with, vetted, and approved by
2 various attorneys, advisors, and doctors to ensure that they were valid and fully consistent
3 with Sumners wishes.
4 In early 2013, as her house was being remodeled, Sumner invited Herzer and her
5 children to move into his expansive Beverly Hills estate. During this time period, far from
6 being isolated, Sumner continued to be active in all aspects of his life and most visibly as
7 chairman of both Viacom and CEO. Attendant with his positions at these companies,
8 Sumner regularly met with and hosted at his house numerous high-profile individuals from
9 the entertainment and business world, including Arnold Kopelson, Sherry Lansing, Al
10 Gore, Brad Pitt, and Mark Wahlberg, to name a few. In 2014, as Sumner began to
11 experience health issues, he turned to Herzer who played a vital role in the management of
12 Sumners home-based health care by coordinating and supervising the staff who resided at
13 his estate. Herzer made numerous improvements to Sumners health care arrangements,
14 and implemented an impressive system of around-the-clock care. As an indication of his
15 trust in Herzer, he named her as a co-agent in his Advance Healthcare Directive, executed
16 on May 21, 2014, and verified by Sumners estate planning attorney Leah Bishop, and
17 a medical doctor retained by Ms. Bishop, Dr. James Spar.
18 B. Sumners Regular Practice Of Making Large Gifts, Many Over $10M,
19 To Important People In His Life.
20 Contrary to what is implied in the Complaint, it was not unusual for Sumner to
21 make large, multimillion-dollar bequests in his estate plan to charitable causes and
22 important people in his life. In the 2013 to 2014 timeframe, Sumner gave millions of
23 dollars to charities. In March 2014just two months before Sumners May 2014 gift to
24 HerzerSumner was interviewed on national television by Charlie Rose of CBS News to
25 announce his $80 million gift to George Washington University to target preventive
26 medicine for chronic conditions. See https://www.youtube.com/watch?v=Ugaq_dENaA0
27 IN. It is apparent from the video that he did so knowingly and voluntarily.
28 During this same timeframe and through September 2015, Sumner voluntarily

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1 amended the Sumner M. Redstone Trust (the SMR Trust)
1
2 (DSUF 3.)
3 For example, the Twentieth Amendment and Restatement of the SMR Trust, dated
4 June 15, 2012, lists bequests to a variety of individuals and family members. (DSUF 5.)
5 The Twentieth Amendment and Restatement also lists bequests to
6
7
8 (DSUF 6.)
9 For important persons in his life, Sumner provided contemporaneous gifts on an
10 ongoing basis in addition to making bequests in his estate plan. (DSUF 13.) Philippe
11 Daumanthe former president and CEO of Viacom (whom Sumner considered a son)
12 and a co-trustee of the SMR Trustconfirmed that it was not out of the ordinary for
13 Sumner to make multimillion-dollar gifts to individuals he valued. Indeed, Dauman
14 testified that
15 (DSUF 17.)
16 For each of these bequests, Sumner made his intentions crystal clear by having the
17 amendments to the SMR Trust drafted, reviewed, vetted, approved, and signed first by his
18 personal attorney and co-trustee of his trust David Andelman, and then by the other
19 co-trustee Philippe Dauman. In his deposition, Dauman described the standard review and
20 approval process for these amendments, whereby Andelman would discuss these bequests
21 with Sumner in the first instance, draft the documents, and then send them to him once
22 they were signed:
23
24
25
26
27
1
The SMR Trust holds
28
(DSUF 2.)
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1
2
3 (DSUF 19.) Dauman also recalls Andelman specifically confirming that these gifts were
4 what Sumner wanted:
5
6
7
8
9
10
11
12 (DSUF 20.)
13 Finally, Dr. James Spara UCLA Board Certified psychiatristalso met with
14 Sumner to discuss several of the amendments to his estate plan and confirm they were
15 consistent with his wishes and did not result from undue influence. (DSUF 21.)
16 C. Sumners Unequivocal Intention To Make Valid Gifts To Herzer
17 Sumner made his first bequest to Herzer on
18 (DSUF 4.) After that initial bequest was made
19
20 Several of those amendments provided for incremental increases in the
21 amounts of the bequests to Herzer and her children. (See, e.g., DSUF 7-11.) In May 2014,
22 Sumner also made a large inter vivos gift to Herzer. (DSUF 14.)
23 Each and every one of these bequests, made over the course of a four-year period,
24 was reviewed, vetted, and signed by Andelman and Dauman, as well as Dr. Spar. (DSUF
25 18.) Moreover, they were all consistent with contemporaneous statements Sumner made
26 regarding his close relationship with Herzer and her children, whom he described as his
27
28

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1 family both privately and publicly.2 (DSUF 1.)
2 Sumners estate lawyer, Leah Bishop of Loeb & Loeb, asked Sumners personal
3 physician, Dr. Spar, to meet with Sumner to discuss the inter vivos gifts and the
4 amendments to the estate plan. (DSUF 22.) Dr. Spar met with Sumner on May 21, 2014,
5 and issued a report setting forth his findings. (Id.) In his report, Dr. Spar explained what
6 he understood Sumners wishes to be:
7
8
9
10
11 (DSUF 23.) Dr. Spar and Sumner also discussed apparent concerns that David Andelman
12 had raised about the gifts and amendments being the result of undue influence:
13
14
15
16
17
18 (DSUF 24.) Dr. Spar noted that Sumner
19
20 , and that in his
21 opinion, Sumner . (DSUF 25.) In concluding his report,
22 Dr. Spar wrote that
23
24 (DSUF 26.)
25
26
2
At the time this gift was granted, Sumner remained publicly and privately active and
27 alert. In the same month that he gave the Charlie Rose interview mentioned above, he also
gave live testimony in the U.S. Tax Court. See Sumner Redstone v. Commissioner of
28
Internal Revenue, United States Tax Court, Docket No. 8097-13.
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1 On June 13, 2014, Dr. Spar again met with Sumner at the request of Leah Bishop to
2 discuss additional amendments to the estate plan and documents regarding deferred
3 compensation from CBS and Viacom, each of which were executed by Sumner at the
4 meeting. (DSUF 27.) Dr. Spar noted that Sumner
5 and
6 . (DSUF 28.)
7 Dr. Spar reported that Sumner was
8 (DSUF 29.)
9 Finally, Dr. Spar described the following exchange with Sumner in his report:
10
11
12
13
14
15
16
17 (Id.)
18 Along with Dr. Spar, Leah Bishop and David Andelman also met with Sumner
19 privately to verify that the amendments reflect Sumners true wishes and free will, and
20 were not the result of undue influence. Bishop testified that Sumner
21
22
23 .3 (DSUF 30.) Andelman and Bishop also executed several Certificates
24 of Independent Review confirming that Sumner intended to make the May 2014 inter vivos
25 gift to Herzer. (DSUF 15.) These documentsseven were executed in totalall stated
26
27 3
Of course, the bulk of Sumners wealththe billions of dollars of shares in CBS and
Viacom that were set aside in a separate trust as a result of his divorcewere never
28
affected by these trust amendments.
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1 unequivocally that Andelman and Bishop certified that the inter vivos gift to Herzer was
2 . (Id.)
3 Sumner was forced to repeatedly clarify, while alone with Dr. Spar and his
4 attorneys over several days of private meetings, his true wishes regarding the provisions he
5 had made for Holland and Herzer. This was, in large part, due to indications from Shari
6 that she planned to challenge the provisions of his estate plan, as evidenced by her refusal
7 to sign a release in favor of Holland and Herzer. In 2014, in part to protect Herzer,
8 Sumner continued negotiating with Shari to buy her out of her 20 percent minority
9 ownership interest in National Amusements, Inc. (NAI) in exchange for $1 billion and
10 a release that would prevent Shari from ever suing Herzer. (DSUF 41.) Sumner
11 concurrently reiterated his desire for peace, and specifically, that his family not attempt to
12 sue either Holland or Herzer. (DSUF 32.) On September 15, 2014, Shari wrote an email
13 to her children Tyler, Kimberlee, and Brandon confirming Sumners wishes:
14 I have come to the conclusion that there is absolutely nothing
that I can do . . . We would not win a lawsuit to get rid of S
15 [Sydney Holland] and M [Manuela Herzer]. And that would
not necessarily be the right thing to do . . . [U]ltimately your
16 grandfather made the decisions that he made. I just called . . .
and all he kept saying was leave Sydney and Manuella [sic]
17 alone. he said it 100 times. (Emphasis added.)
18 (DSUF 33.)
19 D. Sharis Criminal Conspiracy To Oust Herzer
20 Despite Sumners clear desires, Shari had no intention of leaving Herzer alone.
21 And the true motivation behind Sharis subsequent personal vendetta against Herzer was
22 not only retrieving the gifts that Sumner had given to her. Her primary goal was to take
23 dominion over Sumners decision-making powers and thereby regain control over CBS
24 and Viacomfrom which she had long been ostracized by Sumner and the boards of those
25 companies. The backdrop to the estranged personal and business relationship between
26 Shari and Sumner has been well-publicized. As early as July 2007, Sumner wrote
27 a harshly-worded letter to Forbes stating that his children had made little or no
28 contribution to his media empire, and that Sharis ambitions to become his successor as

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1 the chairperson of Viacom and CBS was contrary to the cardinal rule of ethical corporate
2 governance. (DSUF 39.)
3
4 (DSUF 40.) Seeking to
5 eradicate Sharis connection to CBS and Viacom altogether, Sumner also tried to buy out
6 Sharis 20 percent interest in NAI, first in 2007, and then again around September 2014.
7 (DSUF 41.) As explained above, Sumners 2014 offer included a release of liability
8 against Holland and Herzer to give Sumner peace that his estranged daughter would not try
9 to undermine the financial gifts he had recently made. (Id.) Shari declined the offer.
10 (DSUF 42.) She wrote an email to her son Tyler Korff asking,
11
12 (Id.)
13 Desperate to obtain control over CBS and Viacom, Shari thereafter became
14 determined to hijack Herzers relationship with Sumner and obtain control over Sumners
15 life. She saw an opportunity to do so when Sumner suffered a severe health crisis in 2014.
16 It was in that context that Shari and other members of her family, including her children
17 Tyler Korff, Brandon Korff, and Kimberlee Ostheimer, began scheming to invade
18 Sumners and Herzers privacy and create distrust between the two of them.
19 Shari herself knew that a plan needed to be put in place. In a May 24, 2014, email
20 to David Andelman, she stated that
21 . (DSUF 43.) It is during this timeframe that
22 Shari also wrote to her family co-conspirators, [I] am going to go after them [Herzer and
23 Holland] regardless of the strength of the case. (DSUF 44.)
24 The plan itself was sinister. The thousands of secret communications between
25 Tyler, Shari, and the various nurses at Sumners residenceonly recently produced in
26 Tyler Korffs document productiontell a sordid tale of criminal activity designed to
27 destroy Herzerincluding bribery of the nurses who oversaw Sumners care, illegal
28 recordings of Herzers confidential and attorney-client privileged communications, highly

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1 intrusive and unlawful surveillance of Herzers and her childrens movements in and out of
2 the house, and hijacking of Herzers personal computers, private documents, and financial
3 information. All of this was done with the final goal of subverting Herzers relationship
4 with Sumner and undoing Sumners carefully laid plans vis--vis his gifts to Herzer and
5 his plans with Viacom.
6 The plan came to a head on October 12, 2015, when one of Sumners nurses was
7 bribed by Shari and her family co-conspirators to lie to Sumner and tell him that
8 and other falsehoods. That same day, Shari and
9 her son Tyler had arranged for Sumners estate attorneys to be ready to illegally evict
10 Herzer from his house. Tyler Korff sent his brother Brandon Korff a knowing text
11 message within minutes of the eviction stating: This is what weve been working
12 towards. (DSUF 45.) Tyler reiterated that message later that day in an email notifying
13 Sharis lawyer and spokeswoman about Herzers eviction:
14 . (DSUF 46.)
15 The removal of Herzer from Sumners life marked a major achievement for Shari
16 and her family members in furtherance of their long-running conspiracy to seize control of
17 Sumners life. In the months following, Shari prevented any influential or competing
18 outsidersincluding his longtime business associatesfrom seeing Sumner, and caused
19 documents to be signed and corporate actions to be taken that are completely contrary to
20 what Sumner had previously and publicly stated he wanted. As a result of Sharis undue
21 influence, his vast media empire, including Sumners 80 percent controlling share of NAI,
22 the parent company of CBS Corp. and Viacom, has been suddenly and effectively
23 transferred to Sharis control. Sumners closest confidantes for decades, including Phillipe
24 Dauman and George Abrams, had been suddenly removed from their positions as trustees
25 of NAI and directors of Viacom. And the end result is in direct contravention of what
26 Sumner had intended all along: Shari now sits as the vice-chairwoman of both CBS and
27 Viacom.
28

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DEFENDANT MANUELA HERZERS MOTION FOR SUMMARY JUDGMENT
1 E. The Consistent Refusal By Sumners Attorneys To Allow Sumner To Be
2 Deposed, Undergo A Mental Examination, Or Testify
3 Sumners 30-page Complaint in this action was filed on October 25, 2016, and
4 seeks damages in excess of $150 million. Two days after filing the Complaint, Sumners
5 attorneys at Hueston Hennigan notified the parties that Redstone [would], of course, sit
6 for a single deposition to cover all issues in the case . . . . But just two weeks later,
7 Hueston Hennigan abruptly reneged on their promise by filing a Motion for a Protective
8 Order prohibiting a deposition of Sumner on any issue. Sumners attorneys contended
9 that, notwithstanding having purportedly just finished assisting them in the preparation of
10 the Complaint, Sumner could not sit for a deposition because of
11 (See Mot. for Protective Order (Nov. 10, 2016) at 4.)
12 Dr. Gold, Sumners personal physicianwho is not a psychiatristsubmitted a sworn
13 declaration noting the
14 and that Sumners
15
16 (Declaration of Andrew Walsh (Nov. 10, 2016),
17 Ex. B, at 12.).
18 At a hearing held on April 11, 2017, the Court conditionally granted Sumners
19 Motion for a Protective Order. (DSUF 48.) The Court ordered that Sumners attorneys
20 would have until June 21, 2017, to elect whether Sumner would offer any sworn testimony
21 at trial or by declaration. (Id.) If Sumner agreed not to provide testimony either at trial or
22 by means of a sworn declaration, Herzer would not be permitted to take his deposition;
23 conversely, if Sumner did elect to provide testimony, he would be subject to
24 cross-examination by means of a deposition. (Id.) On May 15, 2017, Sumners purported
25 attorney Robert Klieger sent an email confirming that Sumner would not offer any
26 testimony in this case either at trial or by means of a sworn declaration. (DSUF 51.)
27 Sumners attorneys have also resisted any efforts to conduct an Independent
28 Medical Examination (IME) of Sumner. On January 18, 2017, Co-Defendant Holland

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DEFENDANT MANUELA HERZERS MOTION FOR SUMMARY JUDGMENT
1 filed a Motion to Appoint Independent Medical Experts to Evaluate Redstones Physical
2 and Mental Capacity Pursuant to Evidence Code 730. At a February 22 hearing, the
3 Court denied Hollands motion under Evid. Code 730, but expressly left open the
4 possibility of an IME pursuant to Cal. Code. of Civ. Proc. 2032.010. (See Minute Order
5 (Feb. 22, 2017).) On June 26, 2017, Herzer filed precisely such a motion seeking to
6 compel Sumner to sit for an IME pursuant to Cal. Code. of Civ. Proc. 2032.010. (See
7 Mot. to Compel IME (June 26, 2017).) Herzers motion was assigned to the Discovery
8 Referee, the Hon. Gail A. Andler (Ret.), who, after holding a hearing on August 22, 2017,
9 denied Herzers motion.
10 Accordingly, based on the Orders entered by the Court and the Discovery Referee,
11 as well as the election by Sumner not to testify at trial or submit testimony by means of
12 a declaration, this fictitious and fabricated case will not include any sworn testimony from
13 Sumner or evidence of his physical or mental conditionperhaps the best evidence that
14 this case was filed as a result of Sharis undue influence over Sumner Redstone and lacks
15 any merit whatsoever.
16 III. ARGUMENT
17 A. Legal Standard
18 A motion for summary judgment shall be granted if the moving party demonstrates
19 that there is no triable issue as to any material fact, and therefore she is entitled to
20 a judgment as a matter of law. Cal. Civ. Proc. Code 437c; Lopez v. McDonalds Corp.
21 (1987) 193 Cal. App. 3d 495, 503. A defendant has met this burden when she has shown
22 that one or more elements of plaintiff's claim cannot be established. Cal. Civ. Proc. Code
23 437c(p)(2).
24 Once the defendant has met that burden, the burden shifts to the plaintiff to show
25 that a triable issue of one or more material facts exists as to that cause of action. Aguilar v.
26 Atl. Richfield Co. (2001) 25 Cal. 4th 826, 849. The party opposing the motion must
27 produce admissible evidence showing a triable issue of fact exists. Cal. Code. Civ. Proc.
28 437c(p)(1); Green v. Ralee Engineering Co. (1998) 19 Cal. 4th 66, 72. If the plaintiff is

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DEFENDANT MANUELA HERZERS MOTION FOR SUMMARY JUDGMENT
1 unable to meet its burden of proof regarding just one element of its case, all other facts are
2 rendered immaterial and summary disposition is appropriate. Leslie G. v. Perry & Assoc.
3 (1996) 43 Cal. App. 4th 472, 482; Union Bank v. Sup. Ct. (1995) 31 Cal. App. 4th 573,
4 590.
5 B. Plaintiffs First Claim For Financial Elder Abuse Fails Because There Is
6 No Evidence Of Sumners State of Mind At the Time The Gifts At Issue
7 Were Made.
8 Sumners claims for financial elder abuse requires evidence that Herzer caused
9 Sumner to amend his estate plan and make inter vivos gifts either with fraudulent intent
10 or by undue influence. Cal. Welf. & Inst. Code 15610.30(a). Any such findings
11 necessarily require evidence that Sumner presently intends to revoke his prior gifts and
12 further that his free will was previously overcome by Herzers alleged conduct. There is
13 no evidence of any kind from Sumner, nor will any be offered, proving these points.
14 Nor is there evidence of undue influence, which again requires testimony from
15 Sumner as to his state of mind. Under California law, undue influence is the legal
16 condemnation of a situation in which extraordinary and abnormal pressure subverts
17 independent free will and diverts it from its natural course in accordance with the dictates
18 of another person. Estate of Sarabia (1990) 221 Cal. App. 3d 599, 605 (superseded by
19 statute on other grounds) (emphasis added). Put another way, undue influence requires
20 conduct or acts that have the effect of overcoming the free agency of another and causing
21 him to act contrary to and different from what he would have done had he been permitted
22 to follow his own inclination or judgment. Estate of Ricks (1911) 160 Cal. 467, 480
23 (superseded by statute on other grounds). And, furthermore, absent evidence of a present
24 intent to revoke, it is irrelevant that he may have been susceptible to undue influence.
25 Here, the Court will not hear any evidence from Sumner indicating that (1) he
26 currently desires or intends to revoke his prior gifts, or (2) he was not following his own
27 inclination or free will at the time the gifts were made, or (3) he would have acted
28 differently. In fact, there will be no evidence of Sumners state of mind presently or at any

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DEFENDANT MANUELA HERZERS MOTION FOR SUMMARY JUDGMENT
1 time indicating that he did not want these gifts to be made. (DSUF 51, 57.)
2 To the contrary, it is undisputed that Sumner amended his estate plan and made
3 inter vivos gifts to Herzer of his own free will. Unless Sumner plans on contradicting his
4 own estate planning attorneys (Leah Bishop and David Andelman) and his doctor
5 (Dr. James Spar), there is not a single piece of evidence that Sumner can rely on to show
6 that his free will was overcome. Rather, the undisputed evidence (again coming from Leah
7 Bishop, David Andelman, and Dr. James Spar) shows thatat least until October 12,
8 2015Sumner acted of his own free will each and every time he amended his estate plan
9 or made a gift to provide for Herzer and her children.
10 As with the amendments to the estate plan and the inter vivos gifts, there is also no
11 evidence that any credit card purchases were made in contravention of Sumners free will.
12 Indeed, it is Sumners estate planning attorney, Leah Bishop, who again confirms that
13 Herzer was authorized by her client to use his credit card. (DSUF 31.)
14 C. Plaintiffs Second Claim For Breach of Fiduciary Duty Similarly Fails
15 Because Sumner Cannot Prove Causation.
16 Herzer is similarly entitled to judgment as a matter of law on the claim for breach of
17 fiduciary duty. The elements of a cause of action for breach of fiduciary duty are:
18 (1) existence of a fiduciary duty; (2) breach of the fiduciary duty; and (3) damage
19 proximately caused by the breach. Tribeca Cos., LLC v. First Am. Title Ins. Co. (2015)
20 239 Cal. App. 4th 1088, 1114.
21 Here, there is no evidence that Herzer breached any duties to Sumner. Period. And
22 because Sumner has intentionally chosen to refuse to provide testimony explaining his
23 state of mind when he provided those gifts, he cannot prove that Herzers conduct
24 regardless of whether or not it amounted to a breach of a fiduciary dutycaused him to
25 grant those gifts. To the contrary, the evidence proves that Sumner provided those gifts
26 freely and intentionally.
27
28

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DEFENDANT MANUELA HERZERS MOTION FOR SUMMARY JUDGMENT
1 D. Plaintiffs Third Claim For Constructive Fraud Fails Because There Is
2 No Evidence Of A Fraudulent Act, Nondisclosure, Or Reliance.
3 Constructive fraud arises on a breach of duty by one in a confidential or fiduciary
4 relationship to another which induces justifiable reliance by the latter to his prejudice.
5 Tyler v. Children's Home Socy (1994) 29 Cal. App. 4th 51. Accordingly, to establish
6 a claim for constructive fraud, a plaintiff must demonstrate both actual reliance and
7 a resulting injury. Younan v. Equifax Inc. (1980) 111 Cal. App. 3d 498, 516, n.14 (reciting
8 elements for constructive trust, including reliance and resulting injury (causation)).
9 Thus, the motivations and thought processes of a plaintiff are critical to establish a claim
10 for constructive fraud.4
11 Sumners cause of action for constructive fraud is again doomed by his inability to
12 provide evidence. Absent his testimony, Sumner cannot demonstrate that in electing
13 a course of action, he relied on any purported representations of Herzer and did not have
14 some other rationale for acting as he did. Put differently, there will be no evidence that
15 Sumner would have elected a different course of action were it not for the alleged
16 representations of Herzer. This is not an academic question; ample evidence indicates that
17 Sumner made his gifts to Herzer of his own free will and simultaneously desired to remove
18 his estranged daughter as a beneficiary. (DSUF 30.)
19 Where, as here, a plaintiff cannot demonstrate both actual reliance and causation,
20 his claim for constructive fraud must fail. See, e.g., Barnes v. Dobbins (1958) 159 Cal.
21 App. 2d 737, 742 (holding that trial courts finding that plaintiff did not repose trust or
22 confidence in defendant and did not act in reliance on any such trust or confidence
23 destroy[s] any basis for recovery on the grounds of constructive fraud.); see also
24 Prakashpalan v. Engstrom, Lipscomb & Lack (2014) 223 Cal. App. 4th 1105, 1131-32, as
25
26
4
Indeed, the Complaint acknowledges that reliance and causation are essential to a claim
27 for constructive fraud. See Compl. 81 (At the time Redstone acted, he was unaware of
those wrongful acts and omissions and would have acted differently had he known the true
28
facts.) (emphasis added).
3435613.12
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DEFENDANT MANUELA HERZERS MOTION FOR SUMMARY JUDGMENT
1 modified on denial of rehg (Feb. 27, 2014) (finding plaintiffs inability to plead reliance
2 and causation fatal to their claim).
3 E. Plaintiffs Fourth Claim For Intentional Infliction of Emotional Distress
4 Fails As It Is Not Supported With Any Evidence From The Alleged
5 Victim.
6 The elements of a cause of action for intentional infliction of emotional distress are
7 (1) outrageous conduct by the defendant, (2) intention to cause or reckless disregard of the
8 probability of causing emotional distress, (3) severe emotional suffering, and (4) actual and
9 proximate causation of the emotional distress. Molko v. Holy Spirit Assn (1988) 46 Cal.
10 3d 1092, 1120. Severe emotional distress is defined under case law as emotional distress
11 of such substantial quantity or enduring quality that no reasonable man in a civilized
12 society should be expected to endure it. Fletcher v. W. Natl Life Ins. Co. (1970) 10 Cal.
13 App. 3d 376, 397.
14 Here, Sumner cannot prove any emotional distress, as he has refused to testify and
15 to submit to an independent medical examination. Moreover, he cannot even theoretically
16 satisfy the causation element, because he cannot show without testimony that whatever
17 Herzer purportedly did was the reason for (i.e., the proximate cause of) his alleged
18 suffering. End of story. Having refused to engage in discovery or submit testimony on an
19 issue that only he can provide competent evidence on, this claim must be dismissed.
20 IV. CONCLUSION
21 For the foregoing reasons, Defendant Herzer respectfully requests that the Court
22 grant this motion and dismiss all of Plaintiffs claims with prejudice.
23
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25
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DEFENDANT MANUELA HERZERS MOTION FOR SUMMARY JUDGMENT
1 DATED: October 4, 2017 Respectfully submitted,
2 Bird, Marella, Boxer, Wolpert, Nessim,
3 Drooks, Lincenberg & Rhow, P.C.

4
5
6 By:
Ekwan E. Rhow
7 Attorneys for Defendant Manuela Herzer
8
9 Law Offices of Ronald Richards & Associates, A.P.C .

10
11
By:
12
Ronald Richards
13 Attorneys for Defendant Manuela Herzer
14
15
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3435613.12
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DEFENDANT MANUELA HERZER'S MOTION FOR SUMMARY JUDGMENT
Reservation Printout-BC638054-170516219281 Page 1 of 1

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RESERVATION INFORMATION

Reservation ID: 170516219281


Transaction Date: August 19, 2017

Case Number: BC638054


Case Title: SUMNER M REDSTONE VS MANUELA HERZER ET AL
Party: HERZER MANUELA (Defendant/Respondent)

Courthouse: Stanley Mosk Courthouse


Department: 024
Reservation Type: Motion for Summary Judgment
Date: 12/18/2017
Time: 08:30 am

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https://www.lacourt.org/mrs/ui/printablereceipt.aspx?id=0 9/27/2017