20 Cal. App. 5th 1132
Cal. Ct. App. 5th2018Background
- Norman Bartsch Herterich (plaintiff) sued the estate's executor Arndt Peltner and the executor's probate attorney Alice Brown Traeg for intentional and negligent misrepresentation and fraudulent concealment arising from statements made in the probate of Hans Herbert Bartsch’s will.
- In the underlying probate, plaintiff claimed to be Bartsch’s son and a pretermitted heir; appellate decisions (Bartsch I & II) affirmed the probate court that plaintiff was intentionally disinherited and had no interest in the estate.
- Plaintiff alleged defendants filed a probate petition stating under penalty of perjury that decedent had no children, failed to serve plaintiff with notice, and made other false statements that caused him to incur substantial legal fees pursuing heirship.
- After the remittitur in Bartsch II, Peltner moved for summary judgment arguing plaintiff suffered no damages because he had no beneficial interest; the trial court granted judgment for Peltner. Traeg later obtained summary judgment on the ground plaintiff could not reasonably rely on the alleged misrepresentations.
- On appeal the court considered whether the litigation privilege (Civ. Code § 47(b)) bars plaintiff’s tort claims based on communications made in the probate proceeding and affirmed the summary judgments.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does the litigation privilege bar plaintiff’s tort claims based on alleged false statements made in probate filings and proceedings? | Herterich: privilege is inapplicable or waived; defendants breached statutory and common-law duties to disclose and not defraud heirs, so claims should proceed. | Peltner/Traeg: communications were made in a judicial proceeding by authorized participants to achieve litigation objects and are privileged; privilege bars the tort claims. | Litigation privilege applies; claims based entirely on privileged probate communications are barred. |
| Did defendants waive the litigation privilege by failing to plead it or by executor oath/statutes? | Herterich: privilege waived because not asserted below and executor’s statutory oath and Probate Code duties preclude the privilege. | Defendants: privilege can be raised on appeal as a pure question of law; Probate Code provisions do not abrogate the privilege. | No waiver; court may consider privilege on appeal and Probate Code duties do not nullify the privilege here. |
| Do public-policy or statutory exceptions (e.g., analogous to Persolve) render the privilege inapplicable? | Herterich: applying the privilege would nullify statutory protections and permit fraud on the probate process. | Defendants: statutes cited do not create irreconcilable conflict with the privilege; those exceptions are narrow and inapplicable. | Statutory-exception/ public-policy arguments fail; no conflict that renders privilege inapplicable here. |
| Is this extrinsic fraud or a collateral attack (which might avoid privilege)? | Herterich: failure to serve notice and concealment amounted to extrinsic fraud depriving him of due process, so relief should be available. | Defendants: alleged misconduct relates to communications in the probate proceeding; extrinsic fraud normally is addressed by collateral attack/equitable relief, not an independent tort. | This is an independent tort suit based on communications; extrinsic-fraud doctrine does not convert complaint into a collateral attack that avoids the privilege. |
Key Cases Cited
- Silberg v. Anderson, 50 Cal.3d 205 (1990) (articulates four-part test for litigation privilege and its broad, absolute scope even for fraudulent communications)
- Rubin v. Green, 4 Cal.4th 1187 (1993) (privilege applies to communications anticipating litigation)
- Kimmel v. Goland, 51 Cal.3d 202 (1990) (distinguishes communicative and noncommunicative acts for privilege application)
- Steiner v. Eikerling, 181 Cal.App.3d 639 (1986) (applies privilege to presentation of a forged will in probate)
- Shafer v. Berger, 107 Cal.App.4th 54 (2003) (privilege may not apply when it would conflict with specific statutory schemes; limited to facts of Insurance Code interplay)
- Persolve v. People, 218 Cal.App.4th 1267 (2013) (privilege inapplicable where application would wholly vitiate specific statutory protections)
- Flatley v. Mauro, 39 Cal.4th 299 (2006) (recognizes application of privilege to many fraudulent communications in judicial proceedings)
- Home Ins. Co. v. Zurich Ins. Co., 96 Cal.App.4th 17 (2002) (discusses policy favoring finality of judgments despite harsh results when privilege protects false statements)