Deadline · PDF file[Exhibits And Sealed Exhibit Filed Under Separate Covers] ... Procedurally, Vinson was decided on a pretrial petition for writ of mandate. Deadline.com. 9

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IMMEDIATE RELIEF REQUESTED

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT

DIVISION ___

In Re Matter of Advance Health Care Directive of Sumner M. Redstone MANUELA HERZER

2d Civ. No. B_________

Petitioner, Los Angeles Superior Court Case No. BP 168725 Hon. David J. Cowan Department: 79 Telephone: (213) 633-1079 Hon. Clifford L. Klein Department: 11 Telephone: (213) 633-0251

v.

LOS ANGELES SUPERIOR COURT

Respondent.

SUMNER M. REDSTONE

Real Party in Interest.

PETITION FOR WRIT OF MANDATE, PROHIBITION OR OTHER APPROPRIATE RELIEF;

MEMORANDUM OF POINTS AND AUTHORITIES [Exhibits And Sealed Exhibit Filed Under Separate Covers]

GREENBERG GLUSKER FIELDS CLAMAN & MACHTINGER LLP Bertram Fields (SBN 024199) [email protected] Pierce O’Donnell (SBN 081298) [email protected] Paul A. Blechner (SBN 159514) [email protected] Ira M. Steinberg (SBN 273997) [email protected] 1900 Avenue of the Stars, 21st Floor Los Angeles, California 90067-4590 (310) 553-3610 / Fax: (310) 553-0687

GREINES, MARTIN, STEIN & RICHLAND LLP Robert A. Olson (SBN 109374) [email protected] Alana H. Rotter (SBN 236666) [email protected] Jonathan H. Eisenman (SBN 279291) [email protected] 5900 Wilshire Boulevard, 12th Floor Los Angeles, California 90036 (310) 859-7811 / Fax: (310) 276-5261

Attorneys for Petitioner MANUELA HERZER

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IMMEDIATE RELIEF REQUESTED

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT

DIVISION ___

In Re Matter of Advance Health Care Directive of Sumner M. Redstone MANUELA HERZER

2d Civ. No. B__________

Petitioner, Los Angeles Superior Court Case No. BP 168725 Hon. David J. Cowan Department: 79 Telephone: (213) 633-1079 Hon. Clifford L. Klein Department: 11 Telephone: (213) 633-0251

v.

LOS ANGELES SUPERIOR COURT

Respondent.

SUMNER M. REDSTONE

Real Party in Interest.

PETITION FOR WRIT OF MANDATE

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INTRODUCTION ...................................................................................................8 A. The Important, First Impression Issue Presented: Where A

Prima Facie Case Has Been Made, Can A Court Determine That A Person Has Capacity To Make Health Care Decisions Without Hearing Directly From That Person? .................................8

B. Why Writ Relief Is Urgently Needed: At Stake Are The Health Care Decisions For A 92 Year Old Who Is Barely Able To Communicate. ...........................................................................19

PETITION..............................................................................................................24 A. The Petitioner and Real Parties in Interest. ....................................24 B. Authenticity of Exhibits. ................................................................24 C. The Issue Raised In This Petition. .................................................24 D. The Advance Health Care Directive Petition.................................25 E. The Initial Discovery Request And The Initial Request To

Dismiss The Advance Health Care Directive Petition In Response. .......................................................................................29

F. Petitioner’s Second Ex Parte Application – Seeking Limited Discovery Request, Renewing The Request For A Medical Examination, And Seeking To Seal An Audio Recording Of Mr. Redstone. .................................................................................31

G. The Trial Court Grants Petitioner Some Discovery But Denies The Critical Direct Examination Of Mr. Redstone And Orders The Audio Recording Of Him Sealed But Opines That Such Direct Evidence Is Irrelevant. ........................................................31

H. The Viacom CEO Proponents’ Renewed Request for Dismissal. .......................................................................................34

I. The Trial Court Clearly Erred In Denying Petitioner’s Request To Depose And Examine Mr. Redstone. .......................................35

J. Petitioner Has No Plain, Speedy, Or Adequate Remedy At Law Or Any Other Effective Remedy. ..................................................38

K. This Petition Is Timely...................................................................40

PRAYER ................................................................................................................41

VERIFICATION....................................................................................................43

MEMORANDUM OF POINTS AND AUTHORITIES .......................................44

I. AN EXAMINATION AND DEPOSITION OF MR. REDSTONE ARE NECESSARY TO ENSURE THAT THE CHANGE IN HIS HEALTH CARE DECISIONMAKER TRULY REFLECTS HIS WISHES. ....................................................................................................44

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A. The Purpose Of Allowing Petitions to Challenge Or Enforce Advance Health Care Directives Is To Protect Patient Choice, Particularly In The Face of Those Who Would Usurp Such Choices. ..........................................................................................44

B. The Viacom CEO Proponents Seek An Extraordinary Summary Dismissal. ......................................................................46

C. The Trial Court’s Refusal To Permit Ms. Herzer To Examine Or Depose Mr. Redstone Means That The Court Will Be Summarily Adjudicating Mr. Redstone’s Capacity Based On One-Sided Evidence, Without The Full Picture. ...........................47

D. Ms. Herzer Has Established A Compelling Need For Taking Mr. Redstone’s Deposition And For Mr. Redstone’s Participation In A Mental Examination .........................................49

II. THE TRIAL COURT’S REASONS FOR DENYING THE NEEDED DISCOVERY ARE NOT SUSTAINABLE. .............................................52 A. There Is No Privacy Interest That Outweighs The Need For

Discovery Here, Especially Where The Goal Of The Discovery Is To Determine And Honor Mr. Redstone’s True Intent Expressed While He Still Had Capacity. .......................................52

B. As The Legislative History Makes Clear, A Treating Physician’s Opinion Is The Beginning, Not The End, Of The Analysis; The Requested Examinations Of Mr. Redstone Are Necessary To Vet The Treating Physician’s Opinions. .................58

C. Drs. Gold And Spar Are Not Adequate Substitutes For Direct Interaction With Mr. Redstone; The Court Abused Its Discretion By Not Adopting The Proposed Time Limitations To Protect Mr. Redstone. ...............................................................60

D. The Denial “Without Prejudice” Is Nonetheless A Death Knell Here. ...............................................................................................62

E. Ms. Herzer Fully Met The Procedural And Good Cause Requirements of Code of Civil Procedure Sections 2032.310 And 2032.320. ................................................................................63

III. WRIT RELIEF IS NECESSARY TO AVOID IRREPARABLE INJURY; THE DEPOSITION AND MENTAL EXAMINATION ARE NECESSARY WITHOUT FURTHER DELAY BECAUSE MR. REDSTONE IS IN FAILING HEALTH, AND THE ISSUE HERE IS WHO IS TO MAKE HEALTH CARE DECISIONS FOR HIM. .............66

CONCLUSION ......................................................................................................68

CERTIFICATE OF COMPLIANCE .....................................................................70

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CASES

Barrett v. Superior Court (1990) 222 Cal.App.3d 1176 ................................................................. 21

Brandt v. Superior Court (1985) 37 Cal.3d 813 ............................................................................. 25

Britt v. Superior Court (1978) 20 Cal. 3d 844 ............................................................................ 15

California Trial Lawyers Assn. v. Superior Court (1986) 187 Cal.App.3d 575 ................................................................... 20

Campbell v. Superior Court (1996) 44 Cal.App.4th 1308 .................................................................. 23

Carlson v. Superior Court of Los Angeles County (1961) 56 Cal.2d 431 ............................................................................. 22

Edwards v. Superior Court (1976) 16 Cal.3d 905 ....................................................................... 13, 52

Guardianship of Simpson,

(1998) 67 Cal.App.4th 914 .............................................................. 12, 13

H.D. Arnaiz, Ltd. v. County of San Joaquin (2002) 96 Cal.App.4th 1357 .................................................................. 21

Hill v. National Collegiate Athletic Assn. (1994) 7 Cal.4th 1 .................................................................................. 55

In re Crystal J. (1993) 12 Cal.App.4th 407 .................................................................... 61

In re Ferguson (1971) 5 Cal.3d 525 ............................................................................... 50

In Rice v. Superior Court (1982) 136 Cal.App.3d 81 ..................................................................... 20

Interinsurance Exchange of the Automobile Club v. Superior Court (2007) 148 Cal.App.4th 1218 ................................................................ 23

John B. v. Superior Court (2006) 38 Cal.4th 1177 ........................................................ 14, 36, 53, 55

Jones v. Superior Court (1962) 58 Cal.2d 56 ............................................................................... 50

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Koch-Ash v. Superior Court, (1986) 180 Cal.App.3d 689 ................................................................... 20

Mihlon v. Superior Court, (1985) 169 Cal.App.3d 703 ................................................................... 50

Mota v. Sup. Ct., (2007) 156 Cal.App.4th 351 .................................................................. 18

Nightlife Partners, Ltd. v. City of Beverly Hills, 108 Cal.App.4th 81 (2003) .................................................................... 12

Noe v. Superior Court, (2015) 237 Cal.App.4th 316 .................................................................. 20

Omaha Indemnity Co. v. Superior Court, (1989) 209 Cal.App.3d 1266 ................................................................. 20

People v. Dennis, (1986) 177 Cal.App.3d 863 ................................................................... 59

People v. Lightsey, (2012) 54 Cal.4th 668 ...................................................................... 18, 35

People v. McDonald, (1984) 37 Cal.3d 351 ............................................................................. 13

People v. Mendoza, (2000) 23 Cal.4th 896 ............................................................................ 13

Pianka v. State, (1956) 46 Cal.2d 208 ............................................................................. 50

Rehmani v. Superior Court, (2012) 204 Cal.App.4th 945 .................................................................. 21

Schwartzman v. Superior Court, (1964) 231 Cal.App.2d 195 ................................................................... 51

Swaithes v. Superior Court, (1989) 212 Cal.App.3d 1082 ................................................................. 20

Valley Bank of Nevada v. Superior Court, (1975) 15 Cal.3d 652 ....................................................................... 53, 54

Vinokur v. Superior Court, (1988) 198 Cal.App.3d 500 ................................................................... 20

Vinson v. Superior Court, (1987) 43 Cal.3d 833 ...................................................................... passim

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STATUTES

California Code of Civil Procedure § 36 ......................................................................................................... 20 § 1086 ..................................................................................................... 66 § 1103 ..................................................................................................... 66 § 2017.010 .............................................................................................. 49 § 2032.310 ................................................................ 14, 17, 37, 34, 64, 65 § 2032.320 .................................................................................. 14, 17, 37 § 2032.320 .............................................................................................. 56 § 437c ......................................................................................... 18, 47, 50 § 2032 ..................................................................................................... 11 § 2032.310 .............................................................................................. 65

Probate Code § 1000 ..................................................................................................... 45 § 1302.5 .................................................................................................. 19 § 4609 ..................................................................................................... 44 § 4650 ..................................................................................................... 55 § 4650 ............................................................................................... 44, 45 § 4657 ..................................................................................................... 17 § 4658 .............................................................................................. passim § 4755 ............................................................................................... 49, 55 § 4765 ..................................................................................................... 28 § 4766 .............................................................................................. passim § 4768 ................................................................................... 10, 29, 34, 46 § 4750. .................................................................................................... 25

OTHER AUTHORITIES

Assembly Judiciary Committee April 20, 1999 Hearing Memo ................. 59

California Law Revision Commission Staff Memo: Questions and Answers .................................................................................................. 59

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INTRODUCTION

A. The Important, First Impression Issue Presented: Where A Prima Facie Case Has Been Made, Can A Court Determine That A Person Has Capacity To Make Health Care Decisions Without Hearing Directly From That Person?

Unless this Court immediately acts, a miscarriage of justice may

occur. The trial court ruled that a party challenging the mental capacity of

92-year-old Sumner Redstone is not entitled to secure his testimony in

order to oppose a fact-based dispositive motion to dismiss competency

proceedings. While the trial court will consider—and give deference to—

the testimony of two doctors whose opinions as to Mr. Redstone’s capacity

are based on their own meetings with him, Petitioner Manuela Herzer will

not be permitted to test the foundation of their opinions with direct

testimony from Mr. Redstone or to present contrary opinions from her own

expert after the opportunity to conduct a mental examination of

Mr. Redstone.

The trial court barred the brief deposition and mental health

examination of Mr. Redstone based on an improperly broad view of the

right of privacy. As Mr. Redstone himself is the most direct evidence

available in this case, this decision squarely ignores the controlling decision

of Vinson v. Superior Court (1987) 43 Cal.3d 833, in which the California

Supreme Court held that the right of privacy is not absolute and must give

way to the compelling interest in determining the truth about the mental

condition of a party where it has been made an issue in the case.

Procedurally, Vinson was decided on a pretrial petition for writ of mandate.

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Background. Petitioner Manuela Herzer is a longtime friend and

confidante of Sumner Redstone, who considered her family. For the last

several years, she has been in charge of his health care and was named his

health care agent under a formal advance health care directive.

Mr. Redstone requires round-the-clock nursing and semi-weekly physician

visits in his home. He cannot write or walk, and his speech is severely

impaired and largely unintelligible.

In mid-October 2015, Mr. Redstone’s estate planning lawyer, among

others, abruptly threw Ms. Herzer out of Mr. Redstone’s home, where she

had resided for several years. A few days later, Mr. Redstone’s estate

planning lawyer informed Ms. Herzer that Mr. Redstone allegedly replaced

her as his health care agent with a business associate, the Chief Executive

Officer of Viacom, Inc. (Philippe Dauman), who lives in New York and

runs a multi-billion dollar corporate entity there. No explanation was given

for this drastic, out-of-character action, and Ms. Herzer was denied the

opportunity to meet with Mr. Redstone.

Fearing for Mr. Redstone’s well-being, Ms. Herzer petitioned the

trial court, as expressly authorized by Probate Code § 4766, for a

determination that Mr. Redstone lacked capacity to change his health care

directive. The petition was supported by the declaration of herself and

others as to their observations of Mr. Redstone’s behavior and decision-

making, and the declaration of an eminent geriatric psychology

(Dr. Stephen Read, M.D.), who opined that, based on those observations,

Mr. Redstone lacked capacity when he purportedly executed a new advance

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health care directive.

The Viacom CEO proponents placed Mr. Redstone’s capacity

directly at issue by responding immediately with a request that the trial

court dismiss Ms. Herzer’s petition under Probate Code § 4768, which they

claim allows the court to do so upon a finding that “the proceeding is not

reasonably necessary for the protection of the interests of the patient….” In

essence, as indicated by both their initial request for dismissal filed on

November 25, 2015, and their motion to dismiss filed on January 4, 2016,

the Viacom CEO proponents seek a summary factual determination on the

merits that Mr. Redstone had capacity to change health care agents. That

hearing is set for early February.

The critical question at the February hearing will be Mr. Redstone’s

mental capacity, especially in mid-October 2015 when he purportedly

changed his advance health care directive. The Viacom CEO proponents

presented the declarations of two medical doctors to testify that he had and

has capacity to make health care decisions. Each has met directly with Mr.

Redstone.

In response, Ms. Herzer sought the trial court’s permission to depose

Mr. Redstone and renewed her earlier request to allow her expert geriatric

psychiatrist (Dr. Stephen Read, M.D.) to examine Mr. Redstone. In

addition to the declarations previously submitted, Ms. Herzer submitted an

additional declaration from herself and her expert (Dr. Read), a handwriting

expert’s analysis raising questions about the authenticity of a recent

purported signature of Mr. Redstone and undue influence, and a voice

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message left by Mr. Redstone poignantly demonstrating his severely

impaired cognitive functioning.

The Trial Court Rulings. While otherwise lifting the extraordinary

stay of all discovery entered at the inception of the action, the trial court

denied Ms. Herzer’s legal team any access to Mr. Redstone in order to

briefly depose him and further denied their request that Mr. Redstone

participate in a mental examination with Ms. Herzer’s qualified geriatric

psychiatrist as authorized by Code of Civil Procedure § 2032. The trial

court did allow Ms. Herzer to depose the two doctors who have examined

Mr. Redstone and Mr. Dauman, but the preclusion of access to

Mr. Redstone severely and improperly limits Ms. Herzer’s ability to

independently assess their opinions regarding Mr. Redstone’s condition or

their diagnoses and drastically (if not fatally) handicaps her ability to

oppose the request to dismiss.

In making these rulings, the trial court also refused to review one

piece of direct evidence that Ms. Herzer submitted—a recording of a

Mr. Redstone voice message in late September 2015 demonstrating his

severe cognitive and speech impairments. Without explanation, the trial

court stated this probative evidence of Mr. Redstone’s mental deficiency

was irrelevant.

That the trial court denied the requested discovery “without

prejudice” does not alleviate the problem. The discovery denial here is

inherently prejudicial for multiple reasons: (1) it hamstrings Petitioner's

deposition of the Viacom proponents' expert doctors; (2) depriving a party

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of essential evidence before a hearing on a case-dispositive motion is

inherently prejudicial; (3) because the issue here is who should act as the

health care agent for a 92 year old man in failing health, delay alone is

prejudicial; and (4) given Mr. Redstone's age and ill health immediate

discovery is needed to preserve evidence, especially as the issue is his

capacity in October 2015, not that in the future.

Protecting Mr. Redstone And Basic Fairness. Under the trial

court’s ruling, one set of experts—those relied on by the Viacom CEO

proponents—have direct access to Mr. Redstone and the critical facts about

his condition, while Ms. Herzer and her expert are being barred from

acquiring those same primary source facts. Ms. Herzer should not be

required to litigate with one hand behind her back.

If the adversarial search for truth means anything, there must be a

level playing field and the ability of both parties to have equal access to the

critical facts upon which the controversy will be decided. (Cf. Nightlife

Partners, Ltd. v. City of Beverly Hills (2003) 108 Cal.App.4th 81, 90 (“Due

process ... always requires a relatively level playing field, the constitutional

floor of a ‘fair trial in a fair tribunal’....” (Emphasis in original).)

Ascertaining the truth is an overwhelming interest of any legal

proceeding. Truth is revealed by a true adversarial system, not an

inherently flawed process where only one side has access to the critical

facts. “The adversarial system works ... because allowing two or more

sides to present evidence to a neutral decision maker is an

epistemologically sophisticated way to get at the truth.” (Guardianship of

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Simpson (1998) 67 Cal.App.4th 914, 935 (original emphasis).) “As one

writer who himself had achieved some prominence as a family law judge

once observed about the importance of adversarial justice: ‘He that is first

in his own cause seemeth just; but his neighbor cometh and searcheth him.’

(Prov.18:17.)” (Id. at p. 935 fn. 16.) “Evidence that is relevant to the

prime theory of a party’s case cannot be excluded in wholesale fashion....”

(People v. McDonald (1984) 37 Cal.3d 351, 372 [reversible error to

exclude psychologist’s testimony on psychological factors affecting the

accuracy on an eyewitness’s identification of a defendant], overruled on

other grounds in People v. Mendoza (2000) 23 Cal.4th 896, 924.)

The issue of fairness is particularly significant in the context of

experts:

“Our conclusions are fortified by the element of fairness inhering in

the procedural posture of the case. Plaintiff's own psychiatrist has

had months, if not years, of unlimited access to plaintiff for

psychoanalysis and treatment. This professional relationship has

been, as it should be, unfettered. Fundamental fairness requires that

a similar unrestricted professional exposure for a brief period be

allowed the other side. This will assist the trier in obtaining a

balanced and even-handed professional evaluation of the relationship

of trauma to plaintiff's mental condition.”

(Edwards v. Superior Court (1976) 16 Cal.3d 905, 912 (emphasis added).)

The trial court gave three reasons for refusing to allow Ms. Herzer

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direct, unfettered access to Mr. Redstone and his mental state essential to

oppose the pending dispositive fact-based motion to dismiss her petition:

(1) an expansive unqualified view of Mr. Redstone’s right to privacy;

(2) the putative statutory preference for a treating physician’s opinion; and

(3) the procedural requirements of Code of Civil Procedure §§ 2032.310

and 2032.320. None of those outweighs the need for access now to the

crucial facts at issue.

Privacy. A party’s right to privacy is not a bar to discovery that goes

to the essence of the dispute. (E.g., John B. v. Superior Court (2006) 38

Cal.4th 1177, 1198-1199 [right to privacy is not absolute and “must be

balanced against other important interests”].) As the Supreme Court held,

definitively resolving the issue here, a plaintiff’s privacy interests in a case

involving her mental condition did not trump the defendant’s right to

perform a mental examination. (Vinson v. Superior, supra, 43 Cal.3d at

841-42 [“Plaintiff is not compelled, as a condition to entering the

courtroom, to discard entirely her mantle of privacy. At the same time,

plaintiff cannot be allowed to make her very serious allegations without

affording defendants an opportunity to put their truth to the test”].)

Here, the evidence that the trial court has sought to shield –

Mr. Redstone’s mental state—is the core factual issue. It is incongruous

that the trial court professes to be protecting Mr. Redstone’s privacy, when

by preventing access to him, it may very well defeat his true wishes to have

Ms. Herzer as his health care agent, rather than a faraway corporate

executive with no experience managing Mr. Redstone’s health care.

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Paradoxically, an unwarranted bar to discovery in the name of privacy may

well deny him the very protections guaranteed by Probate Code § 4766,

namely, honoring his health wishes when he had capacity. The requested,

limited discovery here relates directly to Mr. Redstone’s mental condition,

which has been directly put at issue by the Viacom CEO proponents.

Mr. Redstone’s privacy interests must give way to the overriding state

interest of facilitating the ascertainment of the truth in connection with

legal proceedings. (Britt v. Superior Court (1978) 20 Cal. 3d 844, 857.)

The trial court’s rationale for shielding Mr. Redstone from alleged

embarrassment is also misplaced. The greater a patient’s enfeeblement, the

greater the potential embarrassment to the patient if his or her true

condition is discovered. Yet that is precisely when the patient most needs

protection. Indeed, if the trial court’s views are correct, persons such as

Mr. Redstone will seldom have their true wishes discovered and honored –

the worse their mental state, the less likely that discovery will be allowed.

The flaw in the trial court’s reasoning is further illustrated by the

fact that Drs. Gold and Spar have examined Mr. Redstone, their

declarations reveal private information, and their written reports and

depositions will undoubtedly reveal embarrassing facts about his physical

and mental conditions. If in fact Mr. Redstone is embarrassed by these

disclosures by his own doctors, he cannot be further embarrassed by the

revelation of private and embarrassing information by Ms. Herzer’s

psychiatrists. The trial court has endorsed an impermissible double

standard. In the end, the privacy issue is a red herring and no basis for

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blocking limited discovery about Mr. Redstone’s medical condition.

The Treating Physician’s Opinion. Mr. Redstone’s treating

physician, Dr. Richard Gold, submitted a declaration asserting that

Mr. Redstone has capacity to make health care decisions. After stating that

capacity is determined by the treating physician under Probate

Code § 4658, the trial court cited the opinions of Drs. Gold and Spar that

Mr. Redstone “has capacity” in concluding that Mr. Redstone’s deposition

and mental examination were unnecessary. Consistent with the deference

the trial court apparently intends to give to the treating physician’s opinion,

the trial court refused to review the one example of direct evidence of

Mr. Redstone’s condition, symptoms, or behavior (the voice-message

recording), and will preclude any direct evidence of Mr. Redstone’s mental

condition at the forthcoming hearing on the request for dismissal.

Preliminarily, the trial court misconstrued Section 4658, which

clearly does not afford deference to a treating physician’s views with

respect to the patient’s capacity to make or revoke a health care directive.

By its plain language, Section 4658 presumes the existence of a valid health

care directive and the existence of an “agent or surrogate,” which

necessarily limits its reference to “capacity” decisions to the activation of a

health care agent’s authority, not the validity of the advance health care

directive itself. In other words, there are two different capacity

determinations involved in the scheme of the Health Care Decision Law:

whether the health care agent should take over the individual’s health care

decision-making due to the individual’s incapacity (Section 4658) versus

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the individual’s capacity to make and revoke the advance health care

directive itself (Section 4766). Deference is accorded to the primary

physician on the former issue but not the latter.

However, any suggestion that the treating physician’s opinion would

receive greater deference only serves to increase the need to allow

Ms. Herzer and her expert to examine Mr. Redstone directly. Ms. Herzer

bears the burden of proof as to Mr. Redstone’s mental capacity in mid-

October 2015. (See Prob. Code § 4657.) And, she does not deny that the

testimony of Mr. Redstone’s treating physician is relevant. But an expert’s

opinion is only as sound as the facts upon which he or she relies. As set

forth above, basic fairness requires the ability to respond, both with direct

evidence from Mr. Redstone himself to challenge the foundation of

Dr. Gold’s opinion and with the expert testimony of Dr. Read on a level

playing field with access to Mr. Redstone.

Code Of Civil Procedure Sections 2032.310 And 2032.320. Finally,

the trial court ruled that insufficient cause had been shown and other

procedural requirements were not met for a mental examination. As far as

the procedural requirements, Ms. Herzer’s initial application, the continued

hearing of which produced the trial court’s order at issue, fully set out all of

the information required. As to whether sufficient cause had been shown,

Mr. Redstone’s mental state is the core – indeed, only – issue in this

proceeding. If this is not good cause, good cause can never be shown.

Conclusion. The refusal to hear from Mr. Redstone himself renders

the proceeding fatally flawed. In our adversarial advocacy system, the

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search for truth depends on both sides having equal access to critical

information – especially when faced with a fact-based motion to dismiss on

the merits. (See Mota v. Sup. Ct. (2007) 156 Cal.App.4th 351, 355 [“[the]

objections created an issue of fact to be adjudicated by the court....

Accordingly, [the objecting party] was entitled to conduct discovery....”];

see also Code Civ. Pro. § 437c(h), (i) [providing party opposing summary

judgment motion right to conduct discovery to obtain facts necessary to

defeat motion].)

The need for access to critical information – evidence – is at least as

great for competency determinations as in other contexts. (See People v.

Lightsey (2012) 54 Cal.4th 668, 701 (“there is no reasoned manner in which

to [determine competency] because the lack of true adversarial testing

denied defendant the basic procedure by which his competence should have

been determined”).) Indeed, given the stakes, it may be greater. Here, for

example, a competent adult should be allowed to entrust his health care

decisions to whomever he chooses in the event of incapacity. Equally, once

that adult loses capacity, his choice of health care overseer made when

competent should be respected and should not be usurped by others.

Especially on the record already before the trial court, Mr. Redstone

deserves to have these fundamental determinations made with the trial court

having access to the most critical evidence.

B. Why Writ Relief Is Urgently Needed: At Stake Are The Health Care Decisions For A 92-Year-Old Man Who Is Barely Able To Communicate.

The contest here is about the health care decisions to be made for a

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92 year old man with substantial health issues who cannot speak intelligibly

or write or otherwise communicate about his health care. The courts have

recognized the need for writ review when the competing issues of privacy

and due process are presented. (See Vinson v. Superior Court, supra, 43

Cal.3d at pp. 841-842.) Writ relief in this action is urgently needed for the

following reasons:

Critical Health Care Decisions May Need To Be Made. The

Viacom CEO proponents are seeking a peremptory, dispositive factual

determination as to Mr. Redstone’s mental capacity in early February. That

decision will be subject to appeal (either way) under Probate Code §1302.5,

but an appeal is not an effective remedy in this circumstance. Critical

health care decisions have been made previously and will undoubtedly need

to be made any day. Who is going to make those decisions?

Mr. Redstone’s longtime friend and companion, who for the last several

years has overseen his day-to-day care, or a corporate CEO who lives and

runs a vast media empire on the East Coast and has a conflict of interest by

virtue of his involvement in a corporate struggle where Mr. Redstone’s

health is directly an issue? (See Battle Brews Atop Media Giant Viacom,

Concern About Health of Chairman Sumner Redstone Sparks Questions

Over Who Will Succeed Him, Wall Street Journal (Oct. 7, 2015)

(http://www.wsj.com/articles/battle-brews-atop-media-giant-viacom-

1444179357) [last accessed January 10, 2016].)

Review On Appeal Is Inadequate. “[W]hen the remedy by appeal

is rendered inadequate in the context of a specific case, this court may, in

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its discretion, permit an aggrieved party to bypass the appellate process and

pursue extraordinary relief. [Citation.]” (California Trial Lawyers Assn. v.

Superior Court (1986) 187 Cal.App.3d 575, 579 [remedy by appeal is

inadequate and writ relief required where “the time consumed by the

normal appeals process would protract the uncertainty as to the identity of”

private association’s president elect and, thereafter, president].) Knowing

the identity of an elderly and ill individual’s health care agent is at least as

pressing as knowing the officers of a private organization of attorneys.

Mr. Redstone’s Age And Failing Health. Mr. Redstone’s age and

health further support urgent review. Code of Civil Procedure § 36

recognizes that disputes involving the elderly and infirm need to be

resolved quickly. In such circumstances, delay alone is irreparable harm, as

numerous cases affording writ relief have recognized. (See In Rice v.

Superior Court (1982) 136 Cal.App.3d 81, 88-91 [enforcing section 36 trial

priority for litigants whose health is such that delays will result in

prejudicing that party's interests]; Koch-Ash v. Superior Court (1986) 180

Cal.App.3d 689; Vinokur v. Superior Court (1988) 198 Cal.App.3d 500;

Swaithes v. Superior Court (1989) 212 Cal.App.3d 1082, 1085-86.) If

Ms. Herzer is correct, given Mr. Redstone’s age and failing health, he

almost inevitably “will suffer harm or prejudice in a manner that cannot be

corrected on appeal.” (Omaha Indemnity Co. v. Superior Court (1989) 209

Cal.App.3d 1266, 1274, citations omitted.)

Fairness, Efficiency, And The Search For Truth. As set forth

above, there can be no fair hearing in early February if Ms. Herzer and her

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medical expert do not have access to the person whose competence is at

issue – Mr. Redstone. A hearing without full access to critical facts will not

only be unfair, but is improper and a waste of time. It will cause

unnecessary delay in a circumstance that requires speed. (See Noe v.

Superior Court (2015) 237 Cal.App.4th 316, 324-25 [granting writ review

to avoid trial that would have to be redone]; Rehmani v. Superior Court

(2012) 204 Cal.App.4th 945, 950 [writ review appropriate to “obviate a

duplicative expenditure of resources for the courts and the parties”]; Barrett

v. Superior Court (1990) 222 Cal.App.3d 1176, 1183 [writ review

appropriate where it will avoid the possibility of a “second trial” and the

“attendant waste of judicial resources”]; H.D. Arnaiz, Ltd. v. County of San

Joaquin (2002) 96 Cal.App.4th 1357, 1367 [“the delay and expense of trial

are valid consideration[s] in deciding whether to grant writ review”].) And

it will defeat the ultimate purpose of our adversarial process – the search for

truth.

Preservation Of Evidence. The trial court’s refusal to allow

Ms. Herzer to gather such evidence now is itself harmful to protecting

Mr. Redstone’s interests. The issue here is Mr. Redstone’s mental capacity

in mid-October 2015. The further it gets from that date, the greater the risk,

especially given Mr. Redstone’s failing physical condition, that

Mr. Redstone’s current mental state will at some point become even worse

than his mental state in mid-October 2015. Under the circumstances,

taking Mr. Redstone’s deposition now is no different than the standard

preservation of documents demand routinely made in any litigation to

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preserve evidence. “An order denying a party utilization of a discovery

proceeding is not directly appealable; and since review on appeal from such

final order or judgment as may be made in the proceeding in which the

discovery is sought would be an inadequate remedy, mandate is a necessary

and proper method of obtaining relief. [Citation].” (Carlson v. Superior

Court of Los Angeles County (1961) 56 Cal.2d 431, 435-36.)

Need For Judicial Guidance. The issue of the appropriate scope of

discovery for a petition regarding an advance health care directive is one of

first impression. The trial court’s view that a patient’s privacy interests and

a treating physician’s opinion trump all other considerations would mean

that no one could ever challenge the physician’s opinion no matter how

unfounded. Turning the statutory presumption of capacity on its head,

there would be an absolute, irrebuttable presumption of capacity if a

treating physician so declares. That physician’s opinion could never be

subject to independent challenge. Especially when combined with the

statute’s express authorization to bring the challenges asserted here under

Probate Code § 4766, the trial court’s view cannot be the law.

Writ review is necessary to provide guidance to trial courts and

litigants alike as to the proper scope of discovery in cases involving

advance health care directive challenges. This is a matter of widespread

interest because advance health care directives are now in widespread use.

(See Brandt v. Superior Court (1985) 37 Cal.3d 813, 816 [writ relief

appropriate to address issue of “widespread interest”]; Interinsurance

Exchange of the Automobile Club v. Superior Court (2007) 148

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Cal.App.4th 1218, 1225 [writ relief appropriate where “‘necessary to

resolve an issue of first impression promptly and to set guidelines for bench

and bar’”]; Campbell v. Superior Court (1996) 44 Cal.App.4th 1308, 1314-

1315 [writ relief appropriate to address “novel and important question”].)

This Court should grant the requested writ relief, either by

peremptory writ or via an alternative writ/order to show cause with an

accelerated briefing and argument schedule.

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PETITION

A. The Petitioner and Real Parties in Interest. 1. Petitioner Manuela Herzer is the Petitioner in the underlying

action giving rise to this writ petition in Los Angeles County Superior

Court Case No. BP168725 entitled In re Advance Health Care Directive of

Sumner M. Redstone (the “Advance Health Care Directive Action”).

2. Respondent, the Superior Court of the State of California for

the County of Los Angeles (“Respondent Court”), is the judicial tribunal

before which the Advance Health Care Directive Action is pending.

3. Real Party in Interest Sumner M. Redstone is referenced in

the applicable statute as the “Patient” in the Advance Health Care Directive

Action. He is the subject of the advance health care directive at issue in the

Advance Health Care Directive Action.

B. Authenticity of Exhibits. 4. The exhibits accompanying this writ petition are true copies

of original documents filed in the Advance Health Care Directive Action

with the Respondent Court and are consecutively paginated. The exhibits

are cited by tab and page number as follows: “Exh. tab [page no.].” The

exhibit sealed by the trial court is filed separately under seal.

C. The Issue Raised In This Writ Petition. 5. The central issue in the Advance Health Care Directive

Action is whether Real Party In Interest Sumner Redstone had capacity

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when he purportedly signed an advance health care directive on October 16,

2015, revoking a prior advance health care directive which named

Petitioner as his health care agent and replacing her with Viacom CEO

Philippe Dauman as his health care agent. A dispositive, fact-based request

to dismiss the Advance Health Care Directive Action is pending and will be

heard on February 8, 2016. The trial court has recognized that Petitioner

needs and is entitled to discovery to oppose that motion. The issue

presented here is whether it has grievously, prejudicially, and irremediably

erred by:

• Denying Petitioner’s request to depose Mr. Redstone for no more

than one-hour; and

• Denying Petitioner’s request that Mr. Redstone participate in a

mental examination interview with Ms. Herzer’s expert geriatric

psychiatrist taking no more than one hour

when such discovery is essential to Petitioner’s ability to respond to the

pending request to dismiss.

D. The Advance Health Care Directive Petition. 6. On November 25, 2015, Ms. Herzer filed her Petition for

Determinations Re Advance Health Care Directive of Sumner M. Redstone

in this Action (the “Petition”). (Exh. 1). The Petition sought relief

pursuant to Probate Code §§ 4750 et seq. Specifically, she sought a

determination under Probate Code § 4766 as to whether Mr. Redstone had

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capacity to make health care decisions and as to whether an advance health

care directive naming her as his health care agent was effective in light of

his lack of capacity. She alleged standing under Probate Code § 4765 as

both his designated health care agent and as his friend. (Exh. 1 [3].)

7. The Petition alleges that:

a. Ms. Herzer is a long-time friend, companion and

confidante of Mr. Redstone who views her as family.

b. In April 2013, at Mr. Redstone’s request, Petitioner

moved into his residence to provide him with companionship and to

oversee his care.

c. In May 2014, Mr. Redstone executed an advance

health care directive naming Ms. Herzer and Mr. Redstone’s then-girlfriend

Sydney Holland as his health care agents.

d. Thereafter, in mid-2014, Mr. Redstone's health began

to decline after he was hospitalized multiple times for aspiration and

pneumonia, and he was given a feeding tube when he could no longer

swallow.

e. Ms. Holland left Mr. Redstone’s residence in late

August 2015 due to a falling out with Mr. Redstone.

f. In early September 2015, Mr. Redstone executed a

new advance health care directive naming Petitioner Herzer as his sole

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primary health care agent with Philippe Dauman, the Chief Executive

Officer of Viacom, Inc., as the backup health care agent.

g. Petitioner oversaw the 24/7 hour nursing staff that

cares for Mr. Redstone, arranged for his medical care, spent time with him,

and saw to his physical and emotional care and comfort.

h. Mr. Redstone’s mental and physical health deteriorated

significantly following Ms. Holland’s departure.

i. After Ms. Holland left, Mr. Redstone became a living

ghost. Those who knew the once vibrant, energetic man now describe him

as vacant, unable to communicate intelligibly, unaware of his surroundings,

lacking affect, prone to spontaneous sobbing, and disinterested in things

that used to excite and engage him.

j. On October 12, 2015, Petitioner was inexplicably

thrown out of Mr. Redstone’s house by Mr. Redstone's estate planning

attorney, who was purportedly acting on Mr. Redstone’s instructions.

During this emotional incident, Mr. Redstone uncontrollably sobbed.

k. Petitioner was thereafter told that Mr. Redstone

executed a new advance health care directive on October 16, 2015,

substituting Mr. Dauman as Mr. Redstone’s health care agent. Viacom’s

Chief Operating Officer, Thomas E. Dooley, was named backup agent.

l. Mr. Redstone lacked sufficient capacity to execute a

new advance health care directive on October 16, 2015.

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m. Mr. Redstone has significant medical issues. He is

unable to communicate reliably or to competently manage his own health

care, and is unable to walk, write or care for himself in any way.

Mr. Redstone is a shut-in who requires 24-hour nursing care, his home is a

virtual intensive care unit, and he cannot even understandably communicate

when he needs medical attention. (Exh. 1.)

8. In support of the Petition, Ms. Herzer concurrently filed her

own declaration (Exh. 2) and those of her brother Carlos Herzer (Exh. 3),

and Heidi MacKinney (Exh. 4), each of whom observed the deterioration of

Mr. Redstone’s mental and physical state. She also attached a declaration

by an eminent geriatric psychiatrist Stephen L. Read, M.D. (Exh. 5).

Dr. Read declared that:

a. Mr. Redstone’s mental and cognitive functions are

significantly impaired due to organic neurological injury resulting from

respiratory issues and profound psychiatric issues aggravated by the abrupt

traumatic end of his five-year romantic relationship with Ms. Holland.

b. Mr. Redstone is no longer competent to make health

care decisions, much less sign legal documents of momentous import to

Mr. Redstone's quality of life and health care.

9. Thereafter, On December 2, 2015, Ms. Herzer filed a

Verification of the Petition. (Exh. 14.)

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E. The Initial Discovery Request And The Initial Request To Dismiss The Advance Health Care Directive Petition In Response.

10. Concurrently with filing the Petition, Ms. Herzer, on

November 25, 2015, sought by ex parte application an expedited hearing on

the Petition and discovery, including a one-hour deposition of Sumner

Redstone and a mental examination of Sumner Redstone by Dr. Read. (the

“Original Ex Parte Application”). (Exh. 6.) The application set forth in

great detail the specific mental examination that Dr. Read sought to

perform, e.g., the topics of an interview with Mr. Redstone and two specific

brain scans to be performed. (Exh. 6 [133-135].) Ms. Herzer’s counsel

concurrently filed a Declaration of Urgency. (Exh. 7.)

11. In response, on November 25, 2015, attorneys purporting to

represent Mr. Redstone (the “Viacom CEO proponents”), filed an

opposition to the Original Ex Parte Application (the “Original Opposition”)

arguing that the purported October 16, 2015 advance health care directive

naming Viacom CEO Philippe Dauman as health care agent should be

controlling because Mr. Redstone had capacity when he signed it. (Exh. 8.)

In addition to opposing the Original Ex Parte Application, the Viacom

CEO proponents requested that the Petition be dismissed pursuant to

Probate Code § 4768 (the “Request for Dismissal”). (Exh. 8 [242-45].)

12. The Original Opposition attached a redacted copy of the

purported October 16, 2015 advance health care directive. It is entirely

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typewritten except for a scrawled line that trails off down the page as

Mr. Redstone’s purported signature. (Exh. 8 [330-38].)

13. The Original Opposition also attached declarations by two

physicians, Drs. Richard Gold and James Spar, who asserted that they had

examined Mr. Redstone and they believed that he was competent. The

Original Opposition asserted that those declarations should have greater

weight than Dr. Read’s declaration, because Drs. Gold and Spar had

examined Mr. Redstone. (Exh. 8 [244, 340-41, 346-55].)

14. The hearing on the Original Ex Parte Application

commenced on November 25, 2015, and was then continued to and

resumed on November 30, 2015. The hearing was held before the

Honorable Clifford L. Klein, who was sitting in for the judicial officer in

the department where the Petition was originally assigned, the Honorable

David S. Cunningham III.

15. At the hearing’s conclusion on November 30, 2015, Judge

Klein ordered (a) Petitioner’s Original Ex Parte Application and the

Viacom CEO proponents’ Request for Dismissal be set for hearing on

January 27, 2016, and (b) a blanket stay of all discovery in the Advance

Health Care Directive Action pending that hearing. (Exh. 12.)

16. At the November 30, 2015 hearing on the Original Ex Parte

Application, however, the trial court clarified that the stay of discovery

being issued did not preclude Ms. Herzer from seeking discovery in

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opposing the Request for Dismissal. (Exh. 11 [394] (at 9:14-17).) The

trial court further clarified that it was not denying the Request for

Dismissal, stating: “I am continuing it.” (Exh. 11 [392] (at 7:2-4).)

F. Petitioner’s Second Ex Parte Application – Seeking Limited Discovery, Renewing The Request For A Medical Examination, And Seeking To Seal An Audio Recording Of Mr. Redstone.

17. Following a Code of Civil Procedue §170.6 challenge to

Judge Cunningham by the Viacom CEO proponents, the matter was re-

assigned to the Honorable David J. Cowan. Based on the trial court’s

comment that it was not precluding discovery necessary to oppose the

Request for Dismissal, on December 14, 2015, Ms. Herzer filed an Ex

Parte Application for Discovery in Response to Respondent’s Request to

Dismiss Petition (the “Renewed Discovery Request”) and various

supporting documents. The Renewed Discovery Request again sought the

deposition of Mr. Redstone (limited to only one hour) and the previously

described and requested mental examination by Dr. Read of Mr. Redstone

(also limited to only one hour).

18. Ms. Herzer also concurrently filed a separate Ex Parte

Application to Seal Records (the “Sealing Application”) (Exh. 24), seeking

to have one exhibit sealed– an audio recording of a voice message left by

Mr. Redstone – which was submitted to the Court as Exhibit A to “Records

Conditionally Filed Under Seal.” (Sealed Exh. 39.)

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G. The Trial Court Grants Petitioner Some Discovery But Denies The Critical Direct Examination Of Mr. Redstone And Orders The Audio Recording Of Him Sealed But Opines That Such Direct Evidence Is Irrelevant.

19. The Renewed Discovery Request and the Sealing Application

were heard on December 21, 2015, by Judge Cowan. Judge Cowan issued

a detailed tentative order, but directed submission and entry of a final order.

The parties’ proposed orders and objections were submitted on January 4,

2016. (See Exh. 34.) The trial court entered the tentative as an order on

January 5, 2016 (the “January 5 Order”) (see Exh. 37), and then entered its

final order on January 8, 2016 (the “Final Order”). (See Exh. 38.) The

Final Order expressly clarified that it controlled in the event of any

inconsistences, and the January 5 Order and the Final Order (collectively

the “January 2016 Orders”) together state the trial court’s ruling on the

Renewed Discovery Request,

20. The trial court rejected the Viacom CEO proponents’

assertion that Judge Klein’s prior ruling created an absolute discovery stay

that could not be revisited. With the exception of deposing Mr. Redstone

(discussed below), the trial court lifted the discovery stay. Judge Cowan

also recognized that Petitioner needed appropriate discovery to respond to

the Request for Dismissal. In that regard, the trial court compelled the

depositions of Drs. Gold and Spar, whose declarations the Viacom CEO

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proponents had offered, and allowed Ms. Herzer to proceed with efforts to

notice the deposition of Viacom CEO Dauman, whose declaration had also

been submitted by the Viacom CEO proponents.

21. The trial court, however, refused to permit Mr. Redstone to be

deposed or to order that Dr. Read be allowed to examine him. As stated in

the Final Order: “The Court denies, without prejudice, Petitioner’s request

to take the deposition of Mr. Redstone prior to the hearing on the Motion

for Dismissal and denies, without prejudice, Petitioner’s request for an

order to take the mental examination of Mr. Redstone prior to the hearing

on the Motion for Dismissal.” (Exh. 38 [1058-59].) The trial court stated

three reasons for its ruling in the January 5 Order:

a. It believed that Mr. Redstone’s right to privacy

outweighed any discovery right. The trial court

reasoned that Mr. Redstone’s condition was such that

he is no longer a vigorous individual and perceived

that he would be embarrassed or his dignity would

suffer if his true condition were to be revealed.

b. It viewed Probate Code § 4658 as affording a statutory

preference for a treating physician’s opinion.

Accordingly, it viewed direct evidence of

Mr. Redstone’s condition as might be obtained by

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mental examination or deposition to be of reduced

relevance.

c. It questioned whether the procedural and good cause

requirements of Code of Civil Procedure §§ 2032.310

and 2032.320 had been met. (Exh. 37.)

22. The trial court also granted the request to seal the audio

recording of Mr. Redstone’s voicemail message. At the same time,

however, the court said that it had not listened to the recording and would

not do so because it thought the recording – direct evidence of

Mr. Redstone’s mental state – to be irrelevant. (Exh. 38.)

23. The Final Order also reset the date for the Viacom CEO

proponents’ proposed Request for Dismissal to February 8, 2016 and set

January 25, 2016 as the date by which Petitioner must file opposing papers.

(Exh. 38 [1057].)

H. The Viacom CEO Proponents’ Renewed Request for Dismissal.

24. On January 4, 2016, the Viacom CEO proponents filed a

formal Notice of Motion and Motion to Dismiss Petition, accompanied by

new declarations from Drs. Gold and Spar. (Exh. 35.) The renewed

dismissal request again seeks dismissal pursuant to Probate Code § 4768

and tracks the arguments in the original request, namely, that Dr. Gold’s

opinion that Mr. Redstone has mental capacity should be determinative as a

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matter of law, and therefore the Petition is unnecessary to protect the

wishes of Mr. Redstone, thereby requiring dismissal pursuant to Probate

Code § 4768. Consistent with the Final Order, the motion set the hearing

for February 8, 2016, at 8:30 a.m. Pursuant to the Final Order, the deadline

for Ms. Herzer’s opposition papers to the Request for Dismissal is January

25, 2016.

I. The Trial Court Clearly Erred In Denying Petitioner’s Request To Depose And Examine Mr. Redstone.

25. The portions of the January 2016 Orders denying Petitioner

the ability to have a one-hour mental examination of Mr. Redstone by

Dr. Read, a highly qualified psychiatrist, or to depose Mr. Redstone for no

more than one hour are clearly wrong:

a. In the search for truth through the adversarial

presentation of evidence and argument, Petitioner needs access to the same

critical primary-source facts as the Viacom CEO proponents have. The

adversarial search for truth is as much necessary for competency

determinations as in other arenas. (See People v. Lightsey (2012) 54

Cal.4th 668, 701.)

b. The truth here can only be gleaned by allowing

Petitioner to examine Mr. Redstone. As the Viacom CEO proponents

contend, Petitioner’s ability to present countervailing expert evidence is

severely hampered if she and her eminently qualified medical expert are not

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allowed to examine Mr. Redstone. (Ex. 8 [244].) The playing field is

irreparably tilted against Ms. Herzer.

c. The Viacom CEO proponents have a pending motion

to dismiss premised on their one-sided factual presentation. Petitioner

needs, and is entitled to, the evidence to respond to that dispositive motion.

d. Mr. Redstone’s privacy interests cannot defeat the

need for fundamental, core discovery essential to the resolution of the

litigation. (John B. v. Superior Court (2006) 38 Cal.4th 1177, 1198-99;

Vinson v. Superior Court (1987) 43 Cal.3d 833, 841-42.) Likewise,

Mr. Redstone’s privacy interests do not outweigh his interest (and the

public interest) in having his true intent, expressed while competent,

honored as to whom his health care agent should be.

e. Probate Code § 4658 does not apply to questions about

a patient’s capacity in executing or revoking an advance health care

directive. Therefore, Dr. Gold’s opinion should not be given any

preference in deciding those issues.

f. Even if Probate Code § 4658 somehow applies to

executing and revoking advance health care directives, that would heighten

the need to allow the requested brief examination of Mr. Redstone.

Without being able to go to the source of the facts that the treating

physician Dr. Gold observed – that is, to examine Mr. Redstone himself –

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any deposition of Dr. Gold or attempt to counter his opinions will be

hamstrung to say the least.

g. Petitioner fully complied with the procedural and good

cause requirements of Code of Civil Procedure §§ 2032.310 and 2032.320.

The Original Ex Parte Application set out in detail the proposed interview

examination and scan tests that Dr. Read proposed as well as the proposed

date, time, and location of such examination. More than adequate good

cause exists as Mr. Redstone’s mental state is the core issue in the Advance

Health Care Directive Action.

h. Deposing Drs. Gold and Spar and Mr. Dauman is not

an adequate substitute for examining Mr. Redstone himself. Without being

allowed to examine Mr. Redstone, Petitioner will be precluded from

confirming and questioning the second-hand information provided by those

witnesses as to the basis for their observations and opinions of

Mr. Redstone’s mental state.

i. Likewise, denying Petitioner the needed deposition

and examination of Mr. Redstone “without prejudice” is inadequate. Delay

is prejudice in this circumstance because:

1. There is a pending, dispositive motion to dismiss;

2. The examination of Mr. Redstone is a necessary

predicate to being able to adequately depose other doctors

concerning their examinations of him;

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3. Mr. Redstone is aged and in ill health requiring an

accelerated, not delayed, determination of the Petition;

4. Mr. Redstone's age, ill health and deteriorating

condition make immediate examination necessary both to

preserve evidence and to obtain an accurate view of his

mental state at the critical October 16, 2015 date.

j. While the trial court correctly sealed the audio

recording, the trial court’s view that the recording – the only first-hand

evidence of Mr. Redstone’s capacity – is irrelevant is also clearly wrong.

J. Petitioner Has No Plain, Speedy, Or Adequate Remedy At Law Or Any Other Effective Remedy.

26. Petitioner has no plain, speedy, or adequate remedy at law,

nor any other effective remedy. She faces a dispositive motion without the

ability to obtain and preserve the most critical evidence in the Advance

Health Care Directive Action – the direct examination of the mental state of

Mr. Redstone himself.

27. Deposing Drs. Gold and Spar is a manifestly inadequate

substitute. Without the ability to judge whether their examinations and

observations of Mr. Redstone were accurate and whether their opinions are

sound, the ability to depose them effectively is greatly, if not fatally,

constrained. At the same time, Petitioner is stymied in her ability to present

competing expert evidence. Indeed, the Viacom CEO proponents have

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argued that Dr. Read’s expert opinions proffered by Petitioner are not

credible because he has not examined Mr. Redstone. (Exh. 8 [244].) They

seek to have it both ways. They claim that Dr. Read is not credible because

he has not examined Mr. Redstone and, at the same time, they assert that

Dr. Read should not be allowed to examine Dr. Redstone. This Catch-22

on its face confirms the rank unfairness of one-sided access to Mr.

Redstone in this case.

28. Appeal after the dispositive motion to dismiss is plainly not

an adequate remedy. Mr. Redstone is 92 years old and in fading health. He

requires 24-hour care and semi-weekly physician visits, and his home is a

virtual intensive care unit. The motion to dismiss hearing is still weeks

away. The many months that even an expeditious appeal would require

would simply not lead to a timely resolution as to who is Mr. Redstone’s

health care agent. The prospect that the Advance Health Care Directive

Action may be dismissed without the trial court hearing from Mr. Redstone

directly is contrary to his interests – the very interests that the trial court is

obligated to protect.

29. Even if the motion to dismiss is denied, the delay in

preserving this evidence is itself prejudicial given the realistic prospect of

the deterioration of Mr. Redstone’s health. The further the delay, the

greater the risk that an examination of Mr. Redstone does not reflect his

state in October 2015.

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K. This Petition Is Timely. 30. The trial court’s (Judge Klein’s) initial November 2015 Order

staying all discovery left open Petitioner’s ability to seek discovery for the

purpose of opposing the Request to Dismiss. Petitioner appropriately

renewed her discovery requests on that basis. The trial court (Judge

Cowan) agreed that it was appropriate for Petitioner to do so. The trial

court granted in part but denied in part (the subject of this writ petition) the

requested relief at a hearing on December 21, 2015. The trial court directed

that Petitioner prepare a formal order; its December 21, 2015 minute order

did not detail its ruling other than to say “granted in part, denied in part.”

Petitioner promptly prepared such a formal order, but due to objections by

the Viacom CEO proponents and the absence of the trial judge over the

holidays, the Final Order was not entered until January 8, 2016. No notice

was given of entry of the January 5 Order, which the parties did not learn of

until entry of the Final Order. Petitioner has promptly sought writ relief

immediately after entry of the Final Order. She has done so well within the

normal time to appeal and as quickly as possible given the exigencies of the

circumstances here.

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PRAYER

Petitioner Manuela Herzer prays that this Court: 1. Issue a peremptory writ directing respondent court to vacate

the portions of the January 2016 Orders denying Ms. Herzer’s requested

relief to depose Mr. Redstone for up to one hour and to have Mr. Redstone

participate in an interview and mental examination with her expert,

Dr. Stephen Read, for up to one hour and instead to issue a new and

different order granting those requests; or,

2. Issue an alternative writ or order to show cause directing

respondent court to vacate the portions of the January 2016 Orders denying

Ms. Herzer’s requested relief to depose Mr. Redstone for up to one hour

and to have Mr. Redstone participate in an interview and mental

examination with her expert, Dr. Stephen Read, for up to one hour and

instead to issue a new and different order granting those requests or else to

show cause why it should not do so and to direct expedited briefing in, and

argument on, such alternative writ or order to show cause;

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MEMORANDUM OF POINTS AND AUTHORITIES

I. AN EXAMINATION AND DEPOSITION OF MR. REDSTONE ARE NECESSARY TO ENSURE THAT THE CHANGE IN HIS HEALTH CARE DECISIONMAKER TRULY REFLECTS HIS WISHES. A. The Purpose Of Allowing Petitions to Challenge Or

Enforce Advance Health Care Directives Is To Protect Patient Choice, Particularly In The Face of Those Who Would Usurp Such Choices.

When Mr. Redstone undisputedly had both the “ability to understand

the nature and consequences of [the] decision,” and the ability “to make and

communicate [that] decision,” he decided that Ms. Herzer, his health care

manager and long-time confidante, should be the agent responsible for

making decisions under his advance health care directive. (See Prob. Code

§ 4609 [defining “capacity”].) Now suspected of having lost his capacity

and being unduly influenced and manipulated (Exh. 5 [95]), Mr. Redstone

has nevertheless purportedly replaced Ms. Herzer with Philippe Dauman,

the CEO of Viacom (and a resident of New York) as his health care agent.

Ms. Herzer’s Petition is for Mr. Redstone’s benefit and seeks to uphold a

commitment to care for Mr. Redstone that Ms. Herzer made when

Mr. Redstone had the capacity to ask.

California’s Health Care Decisions Law “recognizes that an adult

has the fundamental right to control the decisions relating to his or her own

health care” (Prob. Code § 4650, subd. (a)), and as long as an adult has the

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capacity to make such decisions, his choices—including his choice of an

agent to direct his health care if he becomes incapacitated—should be

protected and enforced. (Id., § 4670.) But the Legislature also recognized

that not only might there be a dispute over whether a person has the

capacity to make health care decisions; there might also be a dispute about

whether that person had the capacity to select an agent to make those

decisions for him at the time he selected that agent. Consequently, it

provided a mechanism to petition a court to resolve such disputes. (See id.,

§ 4766, subd. (b).) And while the Legislature created a rebuttable

presumption that the individual signing an advance health care directive

had the capacity to do so, it also made available the entire Civil Discovery

Act to a petitioner seeking to rebut that presumption. (See id., §§ 4657

[presumption of capacity], 4755 [Probate Code § 1000 applies], 1000 [Code

of Civil Procedure, including Civil Discovery Act, applies to Probate Code

proceedings].)

To vindicate Mr. Redstone’s wishes, Ms. Herzer must therefore

rebut the presumption, pressed by the Viacom CEO proponents, that

Mr. Redstone had the capacity to choose Mr. Dauman as his agent at the

time he purportedly made the choice. To rebut that presumption,

Ms. Herzer must submit evidence of Mr. Redstone’s lack of capacity. And

to bolster that which she has already submitted, she is entitled—by the

terms of the Health Care Decisions Law itself—to precisely the same

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access to evidence as the Viacom CEO proponents and the same

meaningful discovery available to any other civil litigant.

B. The Viacom CEO Proponents Seek An Extraordinary Summary Dismissal.

“The key issue on the petition is whether on October 16, 2015,

[Mr.] Redstone had the capacity to revoke an [Advance Health Care

Directive], dated September 3, 2015, which designated [Ms.] Herzer as his

agent, by then executing a new [Advance Health Care Directive], naming

[Mr.] Dauman, as his agent….” (Exh. 37 [1043].)

Yet, the Viacom CEO proponents seek by way of the recently filed

Motion to Dismiss to summarily dismiss the Petition without hearing from

Mr. Redstone himself.1 (See Exh. 8 [242-245]; Exh. 35.) The renewed

dismissal request is based on an expansive reading of Probate Code § 4768,

and asks the trial court to dismiss the Petition if it “appears” for any reason

that “the proceeding is not reasonably necessary for the protection of the

interests of the patient.” (Exh. 35 [977].)

As presented, the renewed dismissal request is a potentially

extraordinary remedy being misused by the Viacom CEO proponents. The

1 Although the Motion states: “Mr. Redstone does not want this Court’s intervention, he does not need this Court’s intervention, and he deserves to be left in peace,” (Exh. 35 [975]), Mr. Redstone himself has offered no declaration, did not submit verifications for either the Opposition or the recently filed Motion to Dismiss Petition, and was carefully hidden from Ms. Herzer behind black curtains when she retrieved her belongings from Mr. Redstone’s house. (Exh. 20 [564].)

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renewed dismissal request is effectively a motion for summary judgment,

i.e., it relies on evidence in the form of the declarations of Drs. Gold and

Spar. Code Civ. Proc. § 437c(b)(1). However, the Viacom CEO

proponents have urged that § 4768 allows for dismissal at a significantly

lower evidentiary burden than applies to summary judgment motions, (i.e.,

any mere appearance will be sufficient even in the face of substantial

evidence establishing disputed facts) and that it is not subject to the

protections of Code of Civil Procedure § 437c(h) that mandate discovery in

order to oppose a fact-based dispositive motion. (Exh. 35 [977].) As filed,

they seek a summary judgment motion without affording Ms. Herzer the

elementary protections that go hand-in-hand with such a motion and to

obtain dismissal without the Court ever resolving on a truly contested basis

the merits of the “key issue” – whether Mr. Redstone had the capacity to

revoke his Advance Health Care Directive on October 16, 2015.

C. The Trial Court’s Refusal To Permit Ms. Herzer To Examine Or Depose Mr. Redstone Means That The Court Will Be Summarily Adjudicating Mr. Redstone’s Capacity Based On One-Sided Evidence, Without The Full Picture.

In support of the renewed dismissal request, the Viacom CEO

proponents seek dismissal of the Petition on an alternative ground.

Specifically, they have made affirmative assertions that Mr. Redstone

retains capacity and continues to make medical and legal decisions. They

supported those assertions with declarations from Drs. Gold and Spar.

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(Exh. 35 [984-1004] [Dr. Gold: Mr. Redstone “has been consistent over the

time I have treated him in his ability to make his own medical decision”;

Dr. Spar: “it is my professional opinion that Mr. Redstone retained the

capacity to execute the estate planning documents he signed that day”].) As

such, Drs. Gold and Spar are critical witnesses, whose opinions will carry

substantial weight—especially if Dr. Read’s contrary opinion lacks the

support of firsthand observations with Mr. Redstone.

Indeed, without reconciling their position with the express right to

challenge capacity determinations under Probate Code § 4766, the Viacom

CEO proponents cite Probate Code § 4658 to argue that Dr. Gold’s

determination as the treating physician that Mr. Redstone has capacity is

determinative as a matter of law. (Exh. 35 [978-979].)

The potential that Dr. Gold’s opinions may hold some elevated

status with respect to any issues only serves to further the need to properly

examine and respond to him.

Conversely, the January 2016 Orders will prevent Ms. Herzer from

submitting evidence from Mr. Redstone that would go directly to the

question of Mr. Redstone’s capacity and his interests or that may

undermine the foundation of the opinions of Drs. Gold or Spar and will

leave Ms. Herzer’s expert, Dr. Read, to submit opinions without the benefit

of a direct interaction with, and examination of, Mr. Redstone.

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D. Ms. Herzer Has Established A Compelling Need For Taking Mr. Redstone’s Deposition And For Mr. Redstone’s Participation In A Mental Examination

The Legislature provided explicitly that the normal rules of civil

procedure would apply to this probate litigation. (Prob. Code §§ 4755,

1000.) Consequently, Ms. Herzer “may obtain discovery regarding any

matter, not privileged, that is relevant to the subject matter involved in the

pending action or to the determination of any motion made in that

action....” (Code Civ. Proc., § 2017.010.) Ms. Herzer has a fundamental

right to proceed with any discovery relevant to this proceeding, including

taking Mr. Redstone’s deposition.

Importantly, Ms. Herzer has shown a compelling need for discovery

notwithstanding any claimed privacy interests, both to take Mr. Redstone’s

deposition and to have Mr. Redstone participate in a mental examination

with Ms. Herzer’s expert, Dr. Read. Such compelling need is grounded in

ensuring that Mr. Redstone is protected as contemplated under Probate

Code § 4766, due process and fundamental fairness in the search for the

truth, the need to respond to the specific issues raised by the Viacom CEO

proponents, and the preservation of evidence. Ms. Herzer does not proceed

based on mere allegation. There is extensive evidence supporting her view

that Mr. Redstone lacked capacity—which if believed would warrant a

finding of incapacity.

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Where, as here, one party wants to go beyond the pleadings to seek a

case-dispositive ruling, the opposing party is entitled to discovery. (See

Pianka v. State (1956) 46 Cal.2d 208, 211-12 [consideration of evidence

beyond the pleadings converts motion into one for summary judgment or

adjudication]; Code Civ. Proc., § 437c(h) [summary adjudication or

judgment “shall” be denied if the opposing party has been prevented from

discovering facts justifying its opposition]; see also Mihlon v. Superior

Court (1985) 169 Cal.App.3d 703, 710 [a plaintiff has a right to conduct

discovery in opposing a motion to quash for lack of personal jurisdiction].)

Given the competing evidence that has already been presented, the

trial court cannot properly decide a fact-based dispositive motion to dismiss

the Petition without hearing from Mr. Redstone directly. Petitioner is

entitled to this discovery in order “to ascertain the truth.” (Jones v.

Superior Court (1962) 58 Cal.2d 56, 58 (citations omitted); cf. In re

Ferguson (1971) 5 Cal.3d 525, 531 [“The search for the truth is not served

but hindered by the concealment of relevant and material evidence.

Although our system of administering criminal justice is adversary in

nature, a trial is not a game. Its ultimate goal is the ascertainment of

truth....”].) This is particularly true where, as here, a party has put at issue

his mental condition; the opposing party “must be allowed to investigate

the continued existence and severity of [those claims].” (Vinson v.

Superior Court, supra, 43 Cal.3d at p. 841.)

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In this specific context, fair resolution of the Petition requires

Ms. Herzer to be able to cross-examine Drs. Gold and Spar and review with

them directly the basis for their assertions. It requires, in order to

adequately respond, her own geriatric psychiatrist be allowed to opine on

an equal basis, i.e, after examining Mr. Redstone. (See Schwartzman v.

Superior Court (1964) 231 Cal.App.2d 195, 205 [“(O)ne way discovery …

would quickly drive fairness and mutuality out of pretrial investigation.”].)

But the trial court has precluded Ms. Herzer from taking the discovery

necessary to truly examine the basis for Dr. Gold and Spar’s opinions and

to place her own expert on a level playing field.

A fair resolution calls for Ms. Herzer’s expert, Dr. Read, to have

access to Mr. Redstone. On this issue, the suggestion that Mr. Redstone

should not be “bothered”—or he will be embarrassed—for what would be

no more than two hours (up to one hour for deposition and up to one hour

for mental examination) is untenable since Drs. Gold and Spar have

apparently spent hours “bothering” Mr. Redstone in connection with

formulating the opinions that they have offered to the trial court and

revealed “embarrassing” facts about his physical and mental condition.

Ultimately, such a minor inconvenience cannot subvert vindicating the

fundamental interest at stake here, namely, protecting Mr. Redstone and the

decisions he made about his health care while he had capacity to do so.

“Our conclusions are fortified by the element of fairness inhering in

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the procedural posture of the case. Plaintiff's own psychiatrist has

had months, if not years, of unlimited access to plaintiff for

psychoanalysis and treatment. This professional relationship has

been, as it should be, unfettered. Fundamental fairness requires that

a similar unrestricted professional exposure for a brief period be

allowed the other side. This will assist the trier in obtaining a

balanced and even-handed professional evaluation of the relationship

of trauma to plaintiff's mental condition.”

(Edwards v. Superior Court (1976) 16 Cal.3d 905, 912 (emphasis added).)

II. THE TRIAL COURT’S REASONS FOR DENYING THE NEEDED DISCOVERY ARE NOT SUSTAINABLE. A. There Is No Privacy Interest That Outweighs The Need

For Discovery, Especially Where The Goal Of The Discovery Is To Determine And Honor Mr. Redstone’s True Intent Expressed While He Still Had Capacity.

Citing Mr. Redstone’s right to privacy, the trial court prevented

Ms. Herzer from deposing Mr. Redstone or having him examined by

Dr. Read, each of which would have taken no more than an hour. In its

view, “even a short deposition of Mr. Redstone, who is ninety two and not

in good health, is an unnecessary invasion of his privacy….” (Exh. 37

[1051].) Further, and without any evidence or citation in support thereof,

the trial court added that “[t]here is even less cause for a mental

examination – which by definition would be even more invasive.” (Exh. 37

[1052].)

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The trial court’s analysis is fundamentally flawed as a matter of law.

Privacy cannot serve as an absolute trump to discovering the otherwise-

discoverable evidence on which a party’s entire case depends. Instead, a

court is required to balance the privacy interest at stake with the necessity

of the evidence in conducting a fair trial, after considering the purpose of

that evidence, the effect its disclosure will have on the parties and trial, the

objections to its disclosure, and the court’s ability to limit the disclosure of

private information while still allowing functional discovery. (John B. v.

Superior Court (2006) 38 Cal.4th 1177, 1199; Vinson v. Superior Court,

supra, 43 Cal.3d at p. 842; see Valley Bank of Nevada v. Superior Court

(1975) 15 Cal.3d 652, 658 [listing criteria].)

After rote recitation of those factors, the trial court determined that

any inquiry of Mr. Redstone “is an unnecessary invasion of his privacy....”

(Exh. 37 [1051].) Ms. Herzer is acutely aware that Mr. Redstone is in poor

health, but a deponent’s health is not a privacy reason to prevent him from

being deposed entirely, and neither the Viacom CEO proponents nor the

trial court offered any authority suggesting otherwise.

Curiously, the trial court did not cite or discuss the controlling

decision of Vinson v. Superior Court, supra, in which the California

Supreme Court decided the very issue presented here. The plaintiff had

filed suit alleging sexual harassment and intentional infliction of severe

emotional distress, thereby placing her mental and emotional state directly

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at issue. Defendant moved for a mental and psychological examination.

The plaintiff objected on the ground of privacy, but the trial court ordered

the examination. The Supreme Court ordered the Court of Appeal to issue

a peremptory writ of mandate allowing the examination to proceed but

limiting its scope.

The Supreme Court rejected any notion that a party’s right to privacy

is absolute. It is axiomatic that the plaintiff’s interest in privacy must be

balanced against the defendant’s right to test plaintiff’s allegations by

examining her. “At the same time, plaintiff cannot be allowed to make her

very serious allegations without affording defendants an opportunity to put

their truth to the test.” (43 Cal.3d at 842.) While she did not waive her

right of privacy as to her sexual history, her “present mental and emotional

condition is directly relevant to her claim and essential to a fair resolution

of her suit; she has waived her right to privacy in this respect by alleging

continuing mental ailments.” (Ibid )

“But even though plaintiff retains certain unwaived privacy rights,

these rights are not necessarily absolute. On occasion her privacy

interests may have to give way to her opponent's right to a fair trial.

Thus courts must balance the right of civil litigants to discover

relevant facts against the privacy interests of persons subject

to discovery. (Valley Bank of Nevada v. Superior Court (1975) 15

Cal.3d 652, 657 [125 Cal. Rptr. 553, 542 P.2d 977].)”

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(Id. at pp. 842-43 (emphasis added).)

In this case, there is no legitimate privacy basis for avoiding a

deposition altogether. As the California Supreme Court recognized, the

right to privacy protects against “the dissemination or misuse of sensitive

and confidential information.” (Hill v. National Collegiate Athletic Assn.

(1994) 7 Cal.4th 1, 35; see, e.g., John B., supra, 38 Cal.4th at pp. 1198-

1202 [invoking the right to protect medical and sexual history].) It also

protects against “observation, intrusion, or interference” in “making

intimate personal decisions or conducting personal activities.” (Hill, at p.

35.)2 Being deposed is not a personal activity in which Mr. Redstone has

an interest in avoiding observation, intrusion, or interference, and it cannot

be said that deposing Mr. Redstone’s about any topic would lead to the

dissemination or misuse of sensitive information any more than the same

could be said about deposing anyone.

No one suggests that, like other discovery, the discovery requested

here could not be subject to an appropriate protective order. And the trial

court could have addressed any privacy right in such a manner. In fact,

2 It is that facet of the right to privacy that the Legislature invoked in creating advance health care directives. (Prob. Code § 4650.) At the same time, the Legislature consciously created a judicial process to determine advance health care directive issues and decided to subject the parties disputing capacity to precisely the same discovery obligations that all other civil litigants face. (Prob. Code §§ 4755, 1000.)

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counsel have agreed to a stipulation and protective order that has been or

will soon be submitted to the trial court for entry.

The trial court’s concern about Mr. Redstone’s embarrassment from

the requested inquiry about his mental capacity rings hollow in light of the

fact that Drs. Gold and Spar have been extensively examining him and have

disclosed details about his physical and mental health in their declarations

and their reports. What is good for the goose is good for the gander.

Dr. Read’s report or Mr. Redstone’s deposition will be no more

embarrassing or intrusive.

Even if there were a privacy interest at stake in deposing

Mr. Redstone, the trial court’s explanation of why that interest should

override even the most compelling reason for the discovery makes no

sense. In an archetypal Catch-22, the trial court noted that because

Drs. Gold and Spar found that Mr. Redstone had capacity, Mr. Redstone

should not be deposed to disprove the doctors’ finding—unless Ms. Herzer

first disproves that Mr. Redstone had capacity. (Exh. 37 [1051].) It is

precisely to disprove the doctors’ conclusion that deposing Mr. Redstone is

indispensable.

And if the trial court had no valid reason to prevent Ms. Herzer from

briefly deposing Mr. Redstone, it had little more reason to prevent Dr. Read

from conducting an hour-long mental examination of Mr. Redstone. The

compelling need for discovery discussed above in the context of privacy is

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equally applicable to establishing the good cause under Code of Civil

Procedure § 2032.320(a) required to order a mental examination.

Indeed, Ms. Herzer has shown much more than good cause to

examine Mr. Redstone in an effort to ascertain his capacity to have

executed an advance health care directive, and to disprove Drs. Gold and

Spar’s assertions that Mr. Redstone had such capacity. Having lived with

Mr. Redstone, Ms. Herzer provided her own firsthand observations of his

condition in a sworn declaration. She also provided the sworn declarations

of two other people who witnessed the diminution of Mr. Redstone’s

capacity, and the opinion of a geriatric psychiatrist, based on the totality of

those observations—and on his review of a recording of Mr. Redstone that

the trial court refused to consider—that Mr. Redstone lacked capacity. On

its face, Ms. Herzer has surely presented sufficient evidence to satisfy

Section 2032.320’s “good cause” requirement, which is meant simply to

thwart “annoying fishing expedition[s].” (Vinson, supra, 43 Cal.3d at p.

840.)

Finally, it is extraordinary that the trial court made its determination

without listening to the evidence submitted in support of the Second Ex

Parte Application – an audio recording of Mr. Redstone from late

September 2015. Facing the question of whether Mr. Redstone should sit

for a brief deposition of no more than one hour and participate in an

interview as part of a mental examination (again for no more than one

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hour), the trial court deemed irrelevant evidence that (a) contradicts

declarations recounting conversations with Mr. Redstone that physically

could not have occurred, given his speech impediment, and (b) reveals the

deterioration of Mr. Redstone’s mental capacity wholly separate from that

speech impediment. The trial court’s assessment that Mr. Redstone’s

inability to speak intelligibly does not bear on his mental capacity is

unsubstantiated – and, indeed, refuted by Dr. Read, who, after listening to

the audio recording, opined that its contents were “suggestive of serious

cognitive limitations on Mr. Redstone’s part.” (Exh. 18 [449-450].) The

trial court made no mention of this aspect of Dr. Read’s review in the

January 2016 Orders; had it done so, one would wonder how the court

could have deemed irrelevant evidence of “serious cognitive limitations” in

a proceeding to determine capacity.

B. As The Legislative History Makes Clear, A Treating Physician’s Opinion Is The Beginning, Not The End, Of The Analysis; The Requested Examinations Of Mr. Redstone Are Necessary To Vet The Treating Physician’s Opinion.

In its ruling, the trial court put great emphasis on Probate Code

§ 4658 which provides in relevant part: “Unless otherwise specified in a

written advance health care directive, for the purposes of this division, a

determination that a patient lacks or has recovered capacity, or that another

condition exists that affects an individual health care instruction or the

authority of an agent or surrogate, shall be made by the primary physician.”

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The trial court went so far as to state that Ms. Herzer’s “case will

likely depend to a great degree on the testimony of Dr. Gold [because

under] Probate Code sec. 4658, capacity under an AHCDC is determined

by the patient’s treating physician.” (Exh. 35 [1050].) Without meaningful

discovery, Dr. Gold’s declaration is effectively conclusive. This is plainly

not the result that the Legislature intended when it enacted the Health Care

Decisions Law.

The Health Care Decisions Law vests in the “primary physician” the

authority to determine whether a patient lacks capacity, but the provision is

premised on the existence of a valid advance health care directive. It

merely reflects the Legislative concern about who determines when the

patient’s health care directive comes into effect and not whether the patient

had the capacity to make the directive in the first place. (Assembly

Judiciary Committee April 20, 1999 Hearing Memo at 6; California Law

Revision Commission Staff Memo: Questions and Answers at 2; Request

for Judicial Notice, Exh. A [10, 13].) Otherwise, it would make no sense

for the Legislature to have authorized the Petition under Probate Code §

4766(a) to seek a judicial determination of Mr. Redstone’s capacity. The

primary physician—here, Dr. Gold—cannot be vested with the conclusive

authority to make that determination about whether a health care directive

has been activated, where the Legislature has allowed specifically for a

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petition to challenge it. (See Prob. Code § 4766, subd. (a).) Under the trial

court’s view, Section 4766 would be mere surplusage.

Here, even deferring greatly to Dr. Gold’s determination, there is

solid evidence in the record to cast serious doubt on his conclusions about

Mr. Redstone’s capacity. A determination of whether Dr. Gold’s opinion

should control is a conclusion on the merits of the Petition that can be

reached only after both sides present evidence. (People v. Dennis (1986)

177 Cal.App.3d 863, 873 (citation omitted) [“A judicial decision made

without giving a party an opportunity to present argument or evidence in

support of his contention ‘is lacking in all the attributes of a judicial

determination.’”].) This is all the more reason to allow Ms. Herzer to take

the very discovery necessary to impeach Dr. Gold’s conclusion.

C. Drs. Gold And Spar Are Not Adequate Substitutes For Direct Interaction With Mr. Redstone; The Court Abused Its Discretion By Not Adopting The Proposed Time Limitations To Protect Mr. Redstone.

With substantial evidence in the record putting Mr. Redstone’s

capacity fairly at issue, the trial court should have permitted development

of the evidence necessary to resolve the question. Allowing Ms. Herzer to

depose Drs. Gold and Spar is not an adequate substitute, particularly where

she is precluded from developing the necessary evidence to examine them.

That is, of course, evidence these doctors acquired by interacting directly

with Mr. Redstone.

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The Viacom CEO proponents have created a situation in which the

only way to develop evidence contradicting their declarations about

Mr. Redstone’s capacity is to allow Dr. Read to examine Mr. Redstone. By

preventing Dr. Read from doing that, and simultaneously preventing

Ms. Herzer’s counsel from deposing Mr. Redstone for less than an hour—

about anything—the trial court has effectively committed itself to a

February 8, 2016 hearing at which Ms. Herzer’s pleadings will be

considered against a fully developed body of evidence in opposition. The

likely outcome of that unfair process is predictable: Ms. Herzer loses.

In moving to dismiss Ms. Herzer’s petition, the Viacom CEO

proponents offer the testimony of doctors who have examined

Mr. Redstone and who have opined that he had the capacity to alter his

advance health care directive. That testimony cannot be refuted effectively

without either an opportunity to have witnessed those examinations—the

Viacom CEO proponents refused to allow that—or an opportunity to

conduct the same examinations again. (See Vinson v. Superior Court,

supra, 43 Cal.3d at pp. 841-42.) The trial court’s answer to the problem,

i.e., that Ms. Herzer can depose only the doctors who examined

Mr. Redstone, is a hollow remedy: Unless the doctors’ responses to her

questions themselves betray error or falsity, Ms. Herzer has absolutely no

means of testing those replies. Indeed, the trial court stated that

Ms. Herzer’s right to a mental examination of Mr. Redstone might very

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well depend “if something is shown to be amiss from the medical

testimony….” (Exh. 35 [1052].) And, yet, the trial court has essentially

forced Ms. Herzer into the position of cross-examining a witness based on

nothing but the words he has just spoken. (Cf. In re Crystal J. (1993) 12

Cal.App.4th 407, 412–13 [“A meaningful hearing requires an opportunity

to examine evidence and cross-examine witnesses….”].)

D. The Denial “Without Prejudice” Is Nonetheless A Death Knell Here.

The trial court denied Petitioner's request to examine Mr. Redstone

ostensibly “without prejudice.” But Petitioner needs to examine

Mr. Redstone now. And, but for the trial court’s orders, she would have

had the option under regular discovery rules to notice and take all

depositions in the order that she elected. The uncertain prospect of

examining Mr. Redstone later – particularly if premised on the conclusion

that the showing of compelling need has not already been satisfied – does

not suffice here for multiple reasons:

1. Mr. Redstone is 92 years old and in failing health.

Any day he could need a health care agent to actively make

decisions (Petitioner believes that he has needed such an agent since

October). Further, with the trial court denying the initial request to

expedite this hearing, the immediate deposition and mental

examination may serve to provide the evidence not only needed to

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oppose the renewed dismissal request, but also to expedite the

process to ensure that Mr. Redstone’s selected health care agent is in

place to make these personal and intimate decisions for him.

2. Petitioner faces a dispositive motion in early February.

She needs discovery to respond to that motion, with an opposition

filing deadline of January 25, 2016. At the same time, she

recognizes that given Mr. Redstone's health, delaying resolution of

this proceeding truly is a classic instance of justice delayed being

justice denied.

3. Petitioner needs the requested examinations of

Mr. Redstone to be able to effectively depose Drs. Gold and Spar. It

is exceedingly difficult—indeed, virtually impossible--to undermine

an expert’s opinion if one cannot examine the primary source facts

on which the expert relies.

4. The issue in this proceeding is Mr. Redstone’s capacity

in mid-October 2015. The further it gets from that date, the more

likely that the Viacom CEO proponents will argue that the belatedly-

obtained evidence does not accurately reflect Mr. Redstone's mental

state at that time.

The trial court's denial of the requested discovery “without

prejudice” thus creates substantial, irremediable harm to Mr. Redstone.

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E. Ms. Herzer Fully Met The Procedural And Good Cause Requirements of Code of Civil Procedure Sections 2032.310 And 2032.320.

The First Ex Parte Application, filed on November 25, 2015, asked

the trial court to order a mental examination of Mr. Redstone that consisted

of an interview with the esteemed geriatric psychiatrist Dr. Stephen Read

and the taking of physical exams recommended by Dr. Read. (Exh. 6).

The trial court denied Ms. Herzer’s request, stating that it was overbroad.

(Exh. 5 [389]; Exh. 6.)

On December 14, 2015, Ms. Herzer renewed her request in the

Second Ex Parte Application, limiting her request by reducing the time

limit for the interview with Dr. Read from four hours to only one hour and

eliminating the physical exams and scans. (Exh. 16). The trial court again

denied Ms. Herzer’s request, this time stating without any explanation that

Ms. Herzer had not complied with statutory requirements. (Exh. 35

[1052].)

“A motion for an examination under subdivision (a) shall specify the

time, place, manner, conditions, scope, and nature of the examination, as

well as the identity and the specialty, if any, of the person or persons who

will perform the examination. The motion shall be accompanied by a meet

and confer declaration under Section 2016.040.” (CCP § 2032.310(b).) All

of the procedural requirements of CCP § 2032.310 had been fully satisfied

in the Original Ex Parte Application. The Original Ex Parte Application

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identified Dr. Read as the examining doctor, submitted the details of his

qualifications and specialty, described the manner, conditions, scope and

nature of the proposed mental examination, and proposed the time, place

and location of the examination, with additional conditions and proposals.

(Exh. 6 [146-50].)

In response to the trial court’s conclusion that the original request

was too broad, the Second Ex Parte Application reduced the time limits

originally proposed from four hours to one hour and eliminated all of the

physical tests that Dr. Read had recommended. Other than those

modifications and proposing a new date and time for the examination given

the intervening passage of time, there was no reason or purpose served to

repeating all of the information already provided about the proposed mental

examination that was already part of the record before the trial court.

Indeed, at the beginning of its order, the trial court acknowledged

that it “had reviewed” all of the pleadings filed by the parties, including the

underlying Petition and opposition thereto, which included the request for

expedited discovery and the statutorily required showing of good cause

under Code of Civil Procedure § 2032.310. (Exh. 35 [1043].)

Given the purpose of Code of Civil Procedure § 2032.310 to provide

notice of the proposed examination, and the absence of any procedural

objection by the Viacom CEO proponents in the two opposition briefs,

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there is no basis for finding that the procedural requirements have not been

satisfied.

Similarly, Ms. Herzer has now shown on two occasions – both in the

Original Ex Parte Application and in the Second Ex Parte Application –

good cause for the issuance of an order permitting the requested mental

examination. Mr. Redstone’s mental state is the core – indeed, only – issue

in this proceeding, and there is substantial competing evidence, including

experts on both sides, that will address this issue. If this is not good cause,

good cause can never be shown.

III. WRIT RELIEF IS NECESSARY TO AVOID IRREPARABLE INJURY; THE DEPOSITION AND MENTAL EXAMINATION ARE NECESSARY WITHOUT FURTHER DELAY BECAUSE MR. REDSTONE IS IN FAILING HEALTH, AND THE ISSUE HERE IS WHO IS TO MAKE HEALTH CARE DECISIONS FOR HIM. A writ of mandate or prohibition may issue if the petitioner

establishes irreparable harm and no other adequate remedy at law. (See

Cal. Code Civ. Proc. § 1103(a) (“A writ of prohibition may be issued by

any court to an inferior tribunal or to a corporation, board, or person, in all

cases where there is not a plain, speedy, and adequate remedy in the

ordinary course of law”); Cal. Code Civ. Proc. § 1086 (“The writ must be

issued in all cases where there is not a plain, speedy, and adequate remedy,

in the ordinary course of law”).)

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There is direct Supreme Court precedent for deciding on a

peremptory writ the issue of whether a privacy claim outweighs a party’s

right to conduct a mental examination where the other party’s mental

capacity is directly at issue. (See Vinson v. Superior Court, supra, 43

Cal.3d at pp. 842-43 [ruling in context of writ proceeding].) Indeed, there

is arguably substantially greater urgency for a ruling here than there was in

Vinson in light of Mr. Redstone’s failing health, the fundamental need to

preserve evidence, and, most importantly, the very real risk that he could at

any time have need for health care decisions to be made by the agent he

selected when he was competent.

Absent this Court’s intervention, the trial court may summarily

adjudicate Mr. Redstone’s mental capacity without meaningful discovery.

If it dismisses the petition based on a finding that Mr. Redstone was

competent in mid-October 2015 to change his health care directive, any

relief available through the normal appellate process would come too late.

An appellate ruling a year or two from now that Mr. Redstone’s capacity

should have been further examined will be futile, because mental capacity

is not fixed—it changes over time, especially when the patient at issue is

already 92 years old with serious ailments, and an examination of

Mr. Redstone several months from now may have little probative value in

determining his capacity in 2015.

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This action is about protecting Mr. Redstone by ensuring that the last

wishes that he expressed while fully capacitated are honored. Should

anything catastrophic happen to him prior to the resolution of this action,

the judicial system – which is supposed to be there to protect him as

mandated by the Health Care Decisions Law–will have let him down.

CONCLUSION

In the name of protecting Mr. Redstone’s dignity, the trial court has

failed to afford Mr. Redstone the very protections guaranteed by the Health

Care Decisions Law. The rules of discovery expressly apply to this

proceeding. By denying Ms. Herzer access to the most critical evidence,

Mr. Redstone himself, the trial court ruling places at risk the fundamental

process of using the adversarial system to arrive at the truth. Without the

deposition and mental examination of Mr. Redstone, the trial court will

proceed with incomplete information, missing a critical part of the story,

while Ms. Herzer is left to attempt to refute the opinions of Drs. Gold and

Spar without the most critical component that should be available to

challenge the foundation of their opinions. This is not the way by which

our system seeks the truth.

For the reasons stated above, this Court should issue a peremptory

writ of mandate directing the trial court to vacate the portions of the

January 2016 Orders prohibiting Ms. Herzer from deposing Mr. Redstone

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