Petitioner Response Re Motion To Dismiss Via The Hollywood Reporter

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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
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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PETITIONERS RESPONSE TO COUNSELS RENEWED MOTION TO DISMISS

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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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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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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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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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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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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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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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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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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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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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
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requires full consideration of all of the evidence at trial. As the Court stated in the Motion to
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Dismiss Ruling:
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Redstone argues that putting Herzer back into the position she seeks would be
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contrary to Redstones purported wishes. This in any event asks the Court to
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assume too much: If the AHCD naming Herzer was effectively revoked, the Court
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will not need to reach this issue. If the AHCD naming Herzer is still effective,
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what role she would have, if any, will be an issue the Court will have to address at
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trial. Though it would not necessarily entail Herzer returns to Redstones home,
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the Court recognizes that the situation here is not simple.
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Id. at 15 (emphasis added). See also id. at 4 ([h]uman nature is complicated. That is why courts
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hold trials: to weigh competing claims, to evaluate credibility of witnesses testifying in front of
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the Court and to allow for cross-examination that may bring up issues not otherwise disclosed. In
this way, the adversarial process can allow for all the truth to come out).


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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
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and nurses to spy upon Redstone and convey protected health information and other private
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information to her in surreptitious e-mails, but she also has very different views regarding end-of-
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life decisions than her father (as evidenced by the controversy over the insertion of a feeding tube
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that saved Redstones life).
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Moreover, Shari Redstone has had very public disagreements with, and been estranged
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from, Redstone. Notably, the vulgar phrase that Redstone now uses to describe Herzer was
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previously used repeatedly by Redstone in reference to his daughter Shari Redstone, and it was as
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recently as January 8, 2015, that Redstone sent Shari Redstone a letter threatening to bar her from
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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


& 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
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.


& 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
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.


& 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

& 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
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
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.
23
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)
1
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
7
8
9
10
11
12
____________________________________________________
13
14
15
CONFIDENTIAL SUBJECT TO PROTECTIVE ORDER
16
VIDEOTAPED DEPOSITION of J. EDWARD SPAR, M.D.
17
18
THURSDAY, MAY 5, 2016
19
VOLUME 2
20
21
22
23
Reported by
24
Daryl Baucum, RPR, CRR, RMR, CSR No. 10356
25
Job No. 2306402,
PAGES 249 - 341
[5/5/2016] Spar, James E. (Vol. 02) - 05/05/2016 - FINAL

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1

GREENBERG GLUSKER FIELDS CLAMAN

BERTRAM FIELDS (SBN 024199)

Case No. BP168725

ADVANCE HEALTH CARE

[Assigned to The Hon. David J. Cowan,

Shortened Hearing Date: May 9, 2016

PETITIONERS RESPONSE TO COUNSELS RENEWED MOTION TO DISMISS

1900 Avenue of the Stars, 21st Floor

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

GREENBERG GLUSKER FIELDS CLAMAN

Court needs to hear all of Herzers evidence.

light of the evidence of Redstones current animosity toward Herzer.

PETITIONERS RESPONSE TO COUNSELS RENEWED MOTION TO DISMISS

1900 Avenue of the Stars, 21st Floor

GREENBERG GLUSKER FIELDS CLAMAN

THE COURT NEEDS TO LOOK BEYOND REDSTONES TESTIMONY

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

intelligible to his speech therapist.

PETITIONERS RESPONSE TO COUNSELS RENEWED MOTION TO DISMISS

Redstone repeated the same epithet over and over.

1900 Avenue of the Stars, 21st Floor

GREENBERG GLUSKER FIELDS CLAMAN

of cognitive impairment because,

Morning Transcript 78:5-13.

vulnerable individuals to the possibility of exploitation by others.

PETITIONERS RESPONSE TO COUNSELS RENEWED MOTION TO DISMISS

not accept the responses as accurately reflecting what Redstone said.

GREENBERG GLUSKER FIELDS CLAMAN

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

PETITIONERS RESPONSE TO COUNSELS RENEWED MOTION TO DISMISS

1900 Avenue of the Stars, 21st Floor

GREENBERG GLUSKER FIELDS CLAMAN

translation of Redstones responses, due process requires an adequate opportunity to respond.

statements, not just the statements themselves.

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

THE PROCEEDINGS ARE REASONABLY NECESSARY TO PROTECT

PETITIONERS RESPONSE TO COUNSELS RENEWED MOTION TO DISMISS

he validly executed should be activated.

1900 Avenue of the Stars, 21st Floor

GREENBERG GLUSKER FIELDS CLAMAN

A Full Trial Is Needed On the Issue of Capacity

PETITIONERS RESPONSE TO COUNSELS RENEWED MOTION TO DISMISS

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

1900 Avenue of the Stars, 21st Floor

GREENBERG GLUSKER FIELDS CLAMAN

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

testimony at trial on lack of capacity.)

PETITIONERS RESPONSE TO COUNSELS RENEWED MOTION TO DISMISS

decisions of his own free will.

1900 Avenue of the Stars, 21st Floor

GREENBERG GLUSKER FIELDS CLAMAN

A Full Trial Is Needed On the Issue of Undue Influence

PETITIONERS RESPONSE TO COUNSELS RENEWED MOTION TO DISMISS

the burden of rebutting it has been satisfied.

1900 Avenue of the Stars, 21st Floor

GREENBERG GLUSKER FIELDS CLAMAN

susceptible to undue influence.

PETITIONERS RESPONSE TO COUNSELS RENEWED MOTION TO DISMISS

1900 Avenue of the Stars, 21st Floor

GREENBERG GLUSKER FIELDS CLAMAN

betrayed him after 17 years of loyalty.