Sumner Redstone's ex-girlfriend must sway judge on incompetence claim

By Dan Levine and Lisa Richwine

SAN FRANCISCO/LOS ANGELES (Reuters) - Sumner Redstone's much-discussed mental state will be dissected in public during a trial set to start on Friday, as an ex-girlfriend tries to convince a Los Angeles judge that the 92-year-old media mogul is incompetent in the culmination of a salacious, months-long legal drama.

If the former girlfriend, Manuela Herzer, succeeds, the outcome could set off a chain of events taking majority control of Viacom Inc and CBS Corp out of Redstone's hands, which could alter the course of the two media giants.

The law requires the court to presume Redstone is competent, putting the burden on Herzer, 51, to prove the multi-billionaire lacked mental capacity in October when he removed her as his health care agent. The trial is scheduled to run through May 16.

In court papers, Herzer portrays Redstone as a "living ghost" who communicates in grunts and is obsessed with having sex and with eating steak, even though he is on a feeding tube and no longer able to chew or swallow.

Redstone's attorneys say he has a severe speech impairment but knew exactly what he was doing in October.

In a surprise order on Monday, Los Angeles Superior Court Judge David Cowan - who will preside over the trial - allowed Herzer's team to interview Redstone at home for 15 minutes.

A video of that deposition will be played for the judge Friday, and a written transcript will be made public. "He could be your best witness," Cowan said to Redstone's attorneys.

The mogul controls about 80 percent of the voting shares of Viacom and CBS through his National Amusements movie theater company. If Herzer wins at the trial, a seven-person trust might then assess Redstone's mental capacity to vote his shares, according to a person familiar with the situation.

The starkly different pictures of Redstone's health are just one strand of a knot that Cowan must untangle to decide who has Redstone's best interests at heart.

Last year, local authorities tasked with protecting the elderly visited Redstone's mansion in Beverly Park, a neighborhood of Los Angeles, sources familiar with the case said. The episode is likely to be raised in the trial.

The visit from an Adult Protective Services unit, previously unreported, occurred in February 2015, eight months before Herzer was ejected from Redstone's home. She played a large role in directing Redstone's care as his health deteriorated through 2014.

A complaint from one of Redstone's nurses sparked the visit, one of the sources said. The complaint is not a public record, and Los Angeles County's Adult Protective Services unit did not immediately respond to questions about the visit. A social worker interviewed Redstone, and no subsequent actions were taken, two sources said.

The two sides are likely to interpret the visit very differently. Redstone's lawyers could argue it bolsters their case that his care was inadequate under Herzer's supervision. Herzer's team could focus on the fact that authorities took no action, suggesting that Redstone received adequate care.

Whether the government visit becomes an issue at trial could depend on how relevant Cowan believes it is to decide Redstone's capacity last October.

"The court intends for this trial to certainly be dignified and to focus on the legal issues that need to be decided," Cowan said last month.

In a trial brief filed on Thursday, Redstone’s attorneys indicated they will attempt to cast doubt on Herzer’s credibility by showing that she did not seem to have concerns about his mental state prior to being ousted from his house.

In the days and weeks before she was ejected, the document notes, Herzer made hundreds of thousands of dollars of purchases on Redstone’s credit card and "executed a $5 million grant agreement with Mr. Redstone for the benefit of her foundation," actions suggesting she thought Redstone was mentally able to approve the expenditures.

A week before Herzer’s ouster, according to the brief, she arranged “for Mr. Redstone to sign documents before a notary.”

Herzer's attorneys have said she is concerned only about Redstone's health. In a separate brief on Thursday, they proposed that evidence "be streamlined to concentrate on Redstone" and asked the judge to prevent the trial from becoming "an attack on Herzer."

Other key witnesses will be two doctors with opposing views of Redstone's mental capacity last October.

Redstone's daughter Shari and Viacom CEO Philippe Dauman also could take the stand.

(Reporting by Dan Levine in San Francisco and Lisa Richwine in Los Angeles; Editing by Bill Rigby)