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1 35882-00002/2510697.10
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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