Sumner Redstone's competency a key question in L.A. probate case

Sumner Redstone with former girlfriend Sydney Holland, left, and companion Manuela Herzer at a 2013 charity event.

By Meg JamesStaff Writer

Aug. 30, 2018 4:30 PM PT

After nearly three years of legal wrangling, key questions remain unanswered about whether ailing 95-year-old media mogul Sumner Redstone understands the activity that swirls around him.

At issue is whether Redstone — who can barely speak — has the mental capacity to authorize a lawsuit that has been filed on his behalf, or changes made to the bylaws of one of the media companies he controls, CBS Corp.

On Thursday, in a courtroom in downtown Los Angeles, the issue of Redstone’s competency once again took center stage. Redstone’s attorney, Robert Klieger, told a judge that the media titan’s condition has deteriorated since May 2016, when Redstone last gave testimony in a long-running court battle with one of his former female companions.

“Mr. Redstone has an amazing comprehension of what’s happening — but he has a very hard time speaking,” Klieger told the judge. “And it has gotten much worse…. He largely uses an iPad to communicate and to answer questions — but they have to be boiled down. He can’t communicate in sentences.”

Los Angeles County Superior Court Judge David J. Cowan on Thursday approved a schedule for a fact-finding process that could ultimately shed light on whether the controlling shareholder of CBS Corp. and Viacom Inc. is, in fact, mentally competent. Such a finding could have serious implications in a fight over control of much of Redstone’s empire and add fuel to a boardroom battle that has engulfed CBS.

Thursday’s hearing came in a long-running legal fight initially pursued by Manuela Herzer, one of Redstone’s former female companions. Once part of Redstone’s orbit, Herzer was kicked out of Redstone’s Beverly Park mansion in October 2015 and later written out of his estate plan. Herzer tried unsuccessfully to restore her standing as an agent for Redstone and secure a place in his will, which would put her in line for tens of millions of dollars from the estate of the ginger-haired mogul.

Herzer withdrew her lawsuit, but in April Redstone filed his own petition to preserve changes made in May 2016 that removed Herzer from his trust. The May 2016 change marked the 40th amendment to Redstone’s trust, which maps out his wishes about how his property should be divided up and his empire run long after he is gone.

Herzer’s legal team challenged Redstone’s petition, contending that the mogul had lost his mental competence and that lawyers who surround him don’t really know what he wants.

“We are going to depose every single person who has been around him,” attorney Ronald Richards, who represents Herzer, said outside the courtroom. “And then it will be difficult for them to contain the true state of affairs.”

The L.A. probate case is unfolding almost simultaneously with a more significant legal dispute, one that also delves into the question of Redstone’s mental state.

In May, CBS board members voted to strip the Redstone family of its voting control of CBS, the venerable New York-based broadcasting company. The Redstone family countersued, and a Delaware judge overseeing the case expressed skepticism this month that Redstone was still of sound mind.

That lawsuit, which is scheduled for an October trial, will likely decide who controls CBS. Lawyers for the media company have argued that the elder Redstone does not have the capacity to authorize actions taken by his family’s investment vehicle, which his daughter Shari Redstone presides over. She also has been pressing to reunite Viacom with CBS, a plan opposed by embattled CEO Les Moonves.

CBS has been roiled by recent allegations published in the New Yorker that Moonves sexually harassed several women decades ago. Moonves has denied forcing himself on women. CBS is investigating the claims.

On Thursday, the Los Angeles judge also suggested that Redstone’s competency might be an issue. Cowan noted that he watched a videotaped deposition that Redstone tried to give in May 2016 when Herzer was first trying to establish that Redstone no longer grasped reality.

“The issue of his capacity now, several years later, might be relevant,” Cowan said. “When I saw Mr. Redstone several years ago, he was struggling. When people have dementia, or a degenerative disease, they do not necessarily recover from it.”

In recent months, new evidence has surfaced casting further doubt on Redstone’s mental capacity. In late January, during one of his frequent visits to Redstone’s home above Beverly Hills, CBS board member Arnold Kopelson — an Oscar-winning film producer and longtime Redstone friend — used his iPhone to make a video recording of the elderly executive.

In the video, Kopelson asks Redstone who runs CBS, and if Redstone recognized his friend of more than 30 years. Redstone failed to respond, according to a person who has been briefed on the recording but was not authorized to discuss it.

The Delaware judge, Andre G. Bouchard, has seen the Kopelson recording and appeared to be troubled by the situation. During an August hearing, Bouchard said he wanted to get to the bottom of “who is calling the shots” at National Amusements Inc., the Redstone family investment firm.

Sumner Redstone remains chief executive of National Amusements, which owns the controlling stakes of both CBS and Viacom, the owner of prominent cable TV channels Comedy Central, MTV, Nickelodeon and the Paramount Pictures film studio in L.A.

In Thursday’s two-hour hearing, Herzer’s attorney, Richards, also referenced the Kopelson recording. Outside the courtroom, Richards would not say whether he had seen the recording, but he suggested he would include testimony from medical experts who were knowledgeable about Redstone’s current condition. He plans to ask the judge to order that an independent neuropsychiatrist examine Redstone.

If Richards can demonstrate that Redstone was not competent in January, then he will ask Cowan to invalidate the Redstone petition that was filed in April.

Klieger, Sumner Redstone’s attorney, said in court papers that the Redstone family would not object to having the Kopelson tape introduced into the probate process but that they want to protect the mogul’s privacy.

“This is truly a miracle,” another Herzer attorney, Mary-Felicia Apanius, wrote in a court filing.

Herzer has been trying to establish that Redstone has been incompetent since 2015, when the mogul banished her from his home. Until then, Herzer was Redstone’s healthcare agent and she ran his huge household in Beverly Park. But that changed abruptly in October 2015, when she was told to leave. Her forced departure came six weeks after he had another former girlfriend, Sydney Holland, bounced from his home following revelations that Holland was having an affair, according to court documents. A private investigator had captured photos of Holland with another man.

Redstone became enraged after seeing the photos and fell apart, prone to loud fits of sobbing and crying, according to court documents filed by Herzer and others.

It was Herzer’s 2015 lawsuit that pulled back the curtain on Redstone’s situation and the lengths that family and friends have gone to in order to keep him alive. Since a 2014 bout with pneumonia, Redstone has been reliant on a feeding tube. He long ago lost the ability to walk and struggles to communicate by grunting or through an iPad programmed with buttons for “yes,” and “no,” according to court records.

The mogul attended an Angels baseball game in Anaheim in late April when the New York Yankees were in town, according to a person familiar with the situation. Nonetheless, Redstone’s attorneys have consistently tried to shield him from further exams by independent doctors — a fact that irked Herzer, who sat in the front row of Cowan’s courtroom.

“He went to a baseball game,” Herzer said. “But he can’t be examined by a doctor?”

After Herzer was pushed out, Shari Redstone took charge of her father’s care. Herzer’s team has long suspected that Shari Redstone also has been pulling the legal strings.

The May 2016 trust changes removed Herzer from Redstone’s estate. Redstone also designated his daughter to have power of attorney — should he be declared incapacitated.

Klieger said that Redstone had one overriding request: “He would like to have finality about his trust and his estate plan before he passes.”

The judge has set a Jan. 14 trial date for the probate case.