LOS ANGELES (CN) - A state court judge on Monday declined to dismiss claims that the ailing former media honcho Sumner Redstone lacks the capacity to make his own health care decisions, and scheduled a May trial.
Redstone's ex-girlfriend and former caretaker Manuela Herzer, 51, filed a petition in LA County Superior Court late last year, claiming that the controlling shareholder of CBS and Viacom was mentally incapacitated when he revoked a Sept. 3, 2015 advance health directive.
The businessman resigned as executive chairman of his two media companies earlier this month.
Redstone's attorneys asked a judge to dismiss Herzer's claims, arguing that Redstone is capable of making his own heath care decisions and that the probate case intrudes on his privacy.
But in a tentative order issued on Monday, Judge David Cowan denied the motion to dismiss.
His Feb. 29 order was without prejudice, meaning the 91-year-old businessman's attorneys could revive their bid to throw the case out.
"Nothing herein should be construed to mean this court has made any finding as to Redstone's mental capacity - which issue is reserved for decision after trial - or for that matter any of the factual contentions raised in support of or in opposition to the motion," Cowan wrote.
Instead, the judge said, the court "may not permissibly dismiss the case short of a trial."
Loeb & Loeb attorney Gabrielle Vidal said at a morning hearing in Cowan's courtroom that allowing the case to go to trial would set a "dangerous precedent." In addition, a physician had made a determination that he had the capacity to make a health care decision, the attorney added.
"Mr. Redstone has anything but privacy as long as these proceedings are allowed to continue," Vidal told the court.
But Cowan was immovable.
"The issue is who gets to decide capacity," Cowan said.
A five-day trial will begin on May 6. During three of those days the parties will convene in the afternoon, Cowan said.
Vidal fought for more time to conduct discovery, arguing that a May trial would be "premature."
"We don't want speed to take the place of Mr. Redstone's right to fully defend against this action, which he will do," Vidal said.
Herzer claims that Redstone's health is failing, that he has severe cognitive deficits and is unable to write or speak properly.
Her Greenberg Glusker attorney Pierce O'Donnell said a quick trial was needed because of Redstone's ailing health.
"I think we need to expedite this," O'Donnell said.
The Los Angeles Times, the Hollywood Reporter and Variety Media had intervened in opposition to Redstone's motion to keep certain confidential records under seal. But Cowan said he would consider arguments on that matter at a March 18 hearing.
Redstone's daughter Shari Redstone, 61, sat behind her attorneys during the proceedings. A representative told Courthouse News after the hearing that she would not be commenting.
Herzer says that Redstone - who is worth more than $5 billion - was under the "undue influence" of his estate-planning attorney Leah Bishop when he terminated Herzer as his health care agent.
Bishop threw Herzer out of Redstone's home in Los Angeles and told her that Redstone had created a new health care directive on Oct. 16, naming Viacom Chief Executive Philippe Dauman as Redstone's health care agent, according to court papers.
On the same day the businessman changed his health care directive he removed Herzer from his will. Herzer would have received $50 million and a $20 million mansion, explaining Herzer's motives for filing the lawsuit, Redstone's attorneys say.
"Surviving a motion to dismiss is a far cry from winning her petition. This decision is not a finding on the merits and it does not change the fact that Ms. Herzer's motives are purely financial," Vidal wrote in a statement emailed to Courthouse News. "We are confident that when the court has evaluated the evidence it will determine that Mr. Redstone had capacity to change his health care directive and that Ms. Herzer should have no role in his life whatsoever."
Herzer says she is Redstone's "longtime friend, companion and caretaker" and says she moved into his home more than two years ago. She began to handle his medical care last year after his relationship with Sydney Holland, his girlfriend of five years, came to an end, she says.
Herzer wants the September 2015 directive to remain in effect and asked the court to reinstate her as Redstone's health care agent.