(Note language in third paragraph some readers may find offensive.)
By Lisa Richwine
LOS ANGELES (Reuters) - Sumner Redstone appeared to take the upper hand in defending a lawsuit challenging his mental competency on Friday, as a judge called Redstone's deposition "strong evidence" that the media mogul knew what he was doing when he ejected an ex-girlfriend from his life.
The woman, Manuela Herzer, is suing Redstone over her removal in October as the billionaire's designated health care agent, arguing that Redstone was not mentally competent at the time he made the decision. Redstone's lawyers say he has difficulty speaking but is mentally fit. (See the players involved in the trial: http://tmsnrt.rs/1Ydyb3I)
At the first day of trial on Friday, Los Angeles Superior Court Judge David Cowan reviewed Redstone's video deposition privately, and a written transcript was publicly released. In it, Redstone said Herzer stole from him and he repeatedly called her a "fucking bitch."
Asked by Redstone's lawyer who should make his health care decisions if he no longer could, the 92-year old former chairman of Viacom and CBS named his daughter, Shari, who is herself a board member at both companies.
The testimony clearly had an impact on Cowan.
"He has told me now, best he can, what he wants," said Cowan, who will decide the case without a jury. "That's strong evidence."
"Your burden now is a hard one," Cowan said to Herzer's attorneys.
Pierce O'Donnell, who represents Herzer, responded that Redstone's answers to his own lawyer's questions were programmed and rehearsed.
Indeed, Redstone had a harder time with O'Donnell's queries, according to the deposition transcript. Redstone didn't answer when asked what his name was before he changed it to Sumner Redstone, and seemed unable to answer questions about when Herzer lived with him.
Redstone's assistant repeatedly asked O'Donnell to speak more loudly and slower, and at one point the deposition was interrupted to adjust Redstone's dentures.
If Herzer, 52, fails to prove Redstone's mental incapacity, that could undercut complaints from some investors about the media mogul’s influence at the two media companies he controls, Viacom Inc and CBS Corp.
Redstone has stepped down as executive chairman. If he was considered mentally incompetent, a chain of events could take the controlling stake out of his hands.
In opening statements, O'Donnell said nurses and family members conspired to get rid of Herzer, regarding her as a barrier to Redstone.
"There was a circle of deceit, a palace coup stretching over a year and featuring a ring of spies," O'Donnell said.
Redstone's attorney Robert Klieger countered that Herzer was abusing Redstone and lying to him. "Mr Redstone does not tolerate lies, he needs to trust the people around him," Klieger said in opening statements.
A geriatric psychiatrist hired by Herzer, Stephen Read, testified on Friday that Redstone has "uncontrollable outbursts of anger" which interferes with his ability to reason.
At an in-person examination earlier this year, Read asked Redstone to identify colored shapes.
"He did very poorly," Read said. Asked to point to a blue star, Redstone pointed at a green square, the psychiatrist said.
When Read asked Redstone to stick his tongue out, he moved his tongue from side to side, an exercise he had learned in speech therapy.
In order to win, Herzer must show that Redstone had sufficient mental capacity when he named Herzer his health care agent in September 2015, but was incompetent the following month when he removed her.
In the days and weeks before she was ejected, Herzer made hundreds of thousands of dollars of purchases on Redstone’s credit card and "executed a $5 million grant agreement with Mr. Redstone for the benefit of her foundation," according to a Redstone court filing.
That suggests Herzer thought Redstone was mentally competent to approve the expenditures, Redstone's attorneys argue.
Herzer was present at the opening of the trial, held in a windowless courtroom on the sixth floor of a downtown Los Angeles courthouse. Redstone's daughter Shari Redstone and her son Brandon Korff also attended.
In the deposition, when asked what he wanted at the end of the trial, the elder Redstone replied: "I want Manuela out of my life. Yeah."
(Additional reporting by Sue Horton in Los Angeles and Jessica Toonkel in New York; Writing by Dan Levine, editing by Bill Rigby and Nick Zieminski)