Judge sets trial on mogul Sumner Redstone's mental capacity

LOS ANGELES — A judge on Monday scheduled a trial to determine whether Sumner Redstone has the mental capacity to make his own health care decisions after expressing concerns about who is in charge of the ailing media mogul's care.

Los Angeles Superior Court Judge David Cowan rejected an effort by Redstone's attorneys to dismiss a filing by the mogul's longtime companion, Manuela Herzer. She contends that the 92-year-old lacks the mental capacity to make his own decisions and she should regain control of his health care.

Cowan's ruling does not address whether Redstone, whose holding company owns 80 percent of the shares in CBS and Viacom, is mentally incapacitated or who should be in charge of his care. The judge set a May trial to try to resolve the case, which has pitted Redstone's ex-girlfriend against his daughter and Viacom CEO Philippe Dauman.

The judge's ruling came after months of fighting between lawyers for Herzer and Redstone, who has stepped down as executive chairman of both companies in recent weeks.

"What is more apparent is that nobody is sufficiently in charge of the ongoing care Redstone needs," Cowan wrote in a 21-page ruling.

Share prices at CBS and Viacom have dropped by 19 percent and 47 percent, respectively, in the last 12 months. Investors are not sure who will run the companies after Redstone dies and his controlling stakes are transferred to a trust that his daughter, Shari Redstone, and Dauman are jostling to control.

Shareholders also have sued, alleging executives were given excessive compensation packages that the elder Redstone "rubber stamped" while contributing little to managing CBS and Viacom.

Cowan's ruling says that even if he decides Redstone was mentally incapacitated when he signed documents removing Herzer from his life, it does not necessarily mean she will be allowed to be his caretaker again.

The judge noted at one point that he has not heard directly from the media mogul through a sworn court declaration. Doctors who treat Redstone have said brain scans have not found any diminished capacity.

Dauman, the Viacom CEO who lives in New York, was designated to make health care decisions for Redstone after Herzer's departure. Cowan questioned Dauman's ability to serve in the case.

The judge cited media reports of fighting between Dauman and Shari Redstone, who attended the hearing. While Cowan noted that the reports characterize the feud as business-related, he said he did not know yet whether the pair "can or do work together on the pressing issue of Redstone's present medical needs."

Herzer's lawyer, Pierce O'Donnell, said the ruling showed that the judge had Redstone's best interests in mind and that the trial would confirm that Redstone's health is far worse than his lawyers have let on.

Redstone's attorney, Gabrielle Vidal, said the ruling was not a victory for Herzer.

"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.