By Dan Levine
(Reuters) - Attorneys for Sumner Redstone's ex-girlfriend say they should be allowed to depose the 92-year-old media mogul because Redstone plans to testify at an upcoming trial over his mental capacity, according to court filings made on Wednesday.
Settlement talks between lawyers representing Redstone and former girlfriend Manuela Herzer, who filed the lawsuit last November, have broken down over the past 48 hours and litigation has "resumed," according to the Herzer court filing. Trial is scheduled to begin on May 6.
A trial could add further embarrassment for the ailing Redstone and his family, and act as a continued distraction for media company Viacom Inc, which is majority-owned by the 92-year-old multi-billionaire.
A spokeswoman for Redstone declined to comment.
In her lawsuit, Herzer is challenging her removal last year as Redstone's healthcare agent in favor of Viacom Chief Executive Philippe Dauman, saying Redstone was not mentally competent to make that decision.
She declared in the suit that Redstone was a "living ghost." Redstone's attorneys argued he was fully aware of his actions. Herzer had been set to inherit $70 million before Redstone changed his estate plan in October, according to court documents.
A Los Angeles judge previously rejected Herzer's request to depose Redstone, and instead allowed a psychiatrist she hired to conduct a brief examination.
But Redstone's lawyers have now told Herzer's side that Redstone will testify, which should clear the way for his deposition, Herzer's lawyers argue. Redstone's lawyers have said they may ask that Redstone have his testimony taken at home instead of in open court, Herzer's attorneys said in the filing.
(Reporting by Dan Levine in San Francisco; Additional reporting by Lisa Richwine in Los Angeles; Editing by Bill Rigby and Peter Cooney)