Herterich v. Peltner

defendants in connection with the probate proceeding and therefore his claims are barred by the litigation privilege under Civil Code section 47, subdivision (b).

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

The background to this case is well known to this court and the parties. We take judicial notice of our prior opinions in Estate of Bartsch (2011) 193 Cal.App.4th 885 , 124 Cal.Rptr.3d 13 ( Bartsch I ) and Estate of Bartsch (Jan. 30, 2014, A135322) 2014 WL 338784 [nonpub. opn.] ( Bartsch II ).

On November 10, 2015, plaintiff filed a separate statement in opposition to Peltner's motion for summary judgment. Plaintiff also filed objections to Peltner's evidence.

On November 25, 2015, the trial court filed its order granting Peltner's motion for summary judgment. The court found plaintiff could not establish that he had suffered any damages as a result of Peltner's alleged tort because this court had affirmed plaintiff had no interest in Bartsch's estate.

On December 9, 2015, judgment was entered in favor of Peltner.

On February 3, 2016, the trial court (with a different judge) granted a motion for summary judgment filed by Traeg on the ground that plaintiff could not demonstrate reasonable reliance as a matter of law. The court stated: "Plaintiff's decision to pursue the omitted child procedure was unreasonable as a matter of law because: 1) the decedent was aware of plaintiff based upon decedent's numerous child support payments and 2) the explicit disinheritance clause."

On February 4, 2016, plaintiff filed a notice of appeal from the December 9, 2015 judgment.

On February 5, 2016, plaintiff filed a notice of intention to move for new trial from the February 3, 2016 order granting Traeg's motion for summary judgment.

On February 16, 2016, plaintiff filed his motion for a new trial. The motion was denied.

On March 16, 2016, judgment for Traeg was filed.

On April 8, 2016, plaintiff filed a notice of appeal from the March 16, 2016 judgment. We consolidated the two appeals.

On November 15, 2017, we asked the parties to file supplemental briefing as to the applicability of the affirmative defense of the litigation privilege to plaintiff's complaint. We received supplemental briefing from all parties.

[defendants] for breaching duties and violating statutes."

A. Waiver

As plaintiff acknowledges, when a defendant raises the litigation privilege for the first time on appeal, the reviewing court may consider it "when the issue raises a pure question of law." ( Shafer v. Berger, Kahn, Shafton, Moss, Figler, Simon & Gladstone (2003) 107 Cal.App.4th 54 , 77, 131 Cal.Rptr.2d 777 ( Shafer ).) Plaintiff correctly notes that defendants did not

that is paid for witnesses who are free from intimidation by the possibility of civil liability for what they say." ' " ( Id. at pp. 642-643, 226 Cal.Rptr. 694 , quoting Ribas v. Clark (1985) 38 Cal.3d 355 , 365, 212 Cal.Rptr. 143 , 696 P.2d 637 .)

In the present case, the gravamen of plaintiff's complaint is that defendants made false and misleading representations during the probate proceedings with respect to whether Bartsch had a child. Plaintiff specifically alleges that defendants "made false representations of several material facts that were crucial to the Court's adjudication of the petition for probate , including: the fact that Bartsch had a son; the fact that Plaintiff was Bartsch's son; the fact that Plaintiff had not been served with the required notice of the petition for probate; the fact that a person who was not interested in the estate had been improperly designated as a person entitled to receive notice of the petition and participate in the proceedings; and the fact that the petition for probate contained false representations regarding material facts, made under oath." (Italics added.) He further asserted his damages, comprised of the legal fees incurred in the probate matter, were incurred as a result of defendants' misrepresentations.

Even if these allegations are true, we join other courts that " 'recognize the necessary harsh result in extending a privilege to false and fraudulent statements made in the course of a judicial proceeding. We accept that result, however, on account of the overriding importance of the competing public policy in favor of enhancing the finality of judgments and avoiding unending postjudgment derivative litigation-a policy which places the obligation on parties to ferret out the truth while they have the opportunity to do so during litigation.' " ( Home Ins. Co. v. Zurich Ins. Co. (2002) 96 Cal.App.4th 17 , 26, 116 Cal.Rptr.2d 583 , quoting Edwards v. Centex Real Estate Corp. (1997) 53 Cal.App.4th 15 , 30, 61 Cal.Rptr.2d 518 .) While we by no means condone intentionally deceptive conduct before the courts, the litigation privilege is absolute.

Plaintiff also contends the litigation privilege does not bar causes of action when the defendant breaches duties owed to the plaintiff. In so arguing, he relies, in part, on Shafer , supra , 107 Cal.App.4th 54 , 131 Cal.Rptr.2d 777 , which considered a lawyer's liability for fraud in light of Insurance Code section 11580. Generally speaking, a judgment creditor of an insured may sue the insurer under the insured's policy to recover on a judgment. ( Ins. Code, § 11580, subd. (b)(2).) Under this statute, the judgment creditor has an independent cause of action against the insurer to enforce the insurer's obligation to indemnify the insured. ( Shafer , at p. 68, 131 Cal.Rptr.2d 777 .)

In Shafer, the insurer's counsel misrepresented the scope of the insurance coverage to the judgment creditors. ( Shafer , supra , 107 Cal.App.4th at pp. 74-75, 131 Cal.Rptr.2d 777 .) The Shafer court held that the litigation privilege did not apply because application of the privilege would undermine the policies behind Insurance Code section 11580. ( Shafer , at pp. 77-78, 131 Cal.Rptr.2d 777 .) Shafer also cautioned that its holding was limited: "Our analysis of the litigation privilege is based on the principles furthered by [Insurance Code] section 11580 and the case law recognizing that an attorney may be held liable for making fraudulent statements to a nonclient." ( Id . at p. 82, fn. 7, 131 Cal.Rptr.2d 777 .) The present case does not involve Insurance Code section 11580. Nor are plaintiff's claims based on misstatements made by defendants to plaintiff . Instead, his claims are based on misstatements made to the probate court .

( Id . at pp. 1276-1277, 160 Cal.Rptr.3d 841 .)

judgment, not to sue in tort .' " ( Kuehn, at p. 834, 102 Cal.Rptr.2d 743 , italics added.)

4. Tortious Conduct

Plaintiff also asserts the litigation privilege does not apply because the complaint uses defendants' communications solely as evidence of tortious conduct. However, even accepting this proposition, it does not detract from the fact that the alleged tortious conduct is entirely based on these same communications, which are protected by the privilege.

In substance, the complaint asserts that defendants' actions in checking the box on the probate petition indicating that Bartsch had no child and verifying the petition caused plaintiff to spend over $750,000 in legal fees in an unsuccessful effort to inherit the entirety of his father's estate. All the associated wrongful representations were made in the course of a judicial proceeding, by participants authorized by law to achieve the objects of the litigation, and have a logical relation to the action. These representations were by the personal representative of the estate, and an attorney on behalf of the personal representative, and all occurred in conjunction with the filing of a probate petition, the subsequent prosecution of that petition, and the defendants' opposition to plaintiff's heirship petition.

Finally, plaintiff asserts the litigation privilege has not barred relief in cases with facts similar to the present one. The cases he relies on primarily address extrinsic fraud. None of these cases address the application of the litigation privilege to derivative lawsuits following the conclusion of a probate matter. An opinion is not authority for a proposition that it did not consider. ( City and County of San Francisco v. Sainez (2000) 77 Cal.App.4th 1302 , 1318, 92 Cal.Rptr.2d 418 .)

Plaintiff Norman Bartsch Herterich appeals from summary judgments in favor of defendants Arndt Peltner and Alice Brown Traeg. The present action arises from prior litigation in a related probate proceeding. Peltner is the executor of the estate of decedent Hans Herbert Bartsch, and Traeg is the attorney who represented Peltner in the probate of the estate. During that proceeding, which has come to the attention of this court on several occasions, plaintiff unsuccessfully maintained that he was entitled to Bartsch's estate as a pretermitted heir. We conclude plaintiff's claims for damages in the present case are based entirely on representations made by

In brief, plaintiff unsuccessfully pursued litigation with the goal of obtaining Bartsch's estate under the theory that he is Bartsch's son and had been unintentionally omitted from his father's will. In Bartsch II, we affirmed the probate court's order granting Peltner's motion for summary judgment on plaintiff's pretermission petition. Plaintiff's petition alleged that he was entitled to inherit because Bartsch either did not believe, or forgot, that he had a child when he executed his will. We concluded substantial evidence supported the conclusion that Bartsch was aware of plaintiff's existence when he executed his will, particularly because there was evidence that he had reluctantly made court-ordered child support payments to plaintiff's mother for many years.

On September 4, 2012, plaintiff filed a complaint against Peltner and Traeg alleging causes of action for (1) intentional fraudulent misrepresentation, (2) negligent misrepresentation, and (3) fraudulent concealment. The complaint also includes a prayer for punitive damages.

In the complaint, plaintiff alleged that defendants stated under penalty of perjury that decedent had no children when they initially filed the petition to administer the probate of Bartsch's estate. They then served the petition on persons who were entitled to receive notice, and also published such notice in the San Francisco Daily Journal. They did not serve notice of their petition on plaintiff, however, although they knew or should have known a statement in Bartsch's will to the effect that he had no children was false and that plaintiff was decedent's son and was entitled to notice. At that time, defendants also "willfully failed to inform the Court [that plaintiff was Bartsch's son], ... and instead concealed and omitted that information ...." This conduct allegedly caused plaintiff to falsely believe that decedent was not dead and that no petition had been filed, depriving him of the opportunity to object or to assert a claim the estate. He also alleged that because of the way defendants stated the allegations in the petition, he believed that decedent "was not aware that he had a son or had forgotten it," leading him to incur significant legal fees by filing an heirship petition. Additionally, he alleged he was damaged because the court relied on defendants' misrepresentations in rendering rulings adverse to him.

On July 26, 2013, a stipulation and order was filed, staying the action until the expiration of 120 days after the issuance of the remittitur from this court in Bartsch II.

On January 30, 2014, we filed our opinion in Bartsch II, affirming the probate court's determination that plaintiff was not a pretermitted heir, having been intentionally disinherited by Bartsch.

On April 24, 2014, this court issued the remittitur.

On September 8, 2015, Peltner filed a motion for summary judgment in the present case. The motion was based, in part, on the ground that plaintiff had no beneficial interest in the estate and therefore had not been harmed by his delayed discovery of the probate proceeding.

DISCUSSION

A motion for summary judgment is properly granted only when "all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." ( Code Civ. Proc., § 437c, subd. (c).) We review a grant of summary judgment de novo and decide independently whether the facts not subject to triable dispute warrant judgment for the moving party as a matter of law. ( Intel Corp. v. Hamidi (2003) 30 Cal.4th 1342 , 1348, 1 Cal.Rptr.3d 32 , 71 P.3d 296 ; Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317 , 334, 100 Cal.Rptr.2d 352 , 8 P.3d 1089 .)

As

summarized by plaintiff, his complaint "alleges that [defendants] wrongfully deprived [him] of his inheritance rights and caused [him] to incur expenses, including attorney's fees, in the prior probate proceeding. The Complaint alleges [defendants] made conflicting representations in the probate proceeding, and [he] is entitled to relief regardless of which representations are true."

A publication or broadcast made in a judicial proceeding is privileged. ( Civ. Code, § 47, subd. (b).) Originally enacted as a defense to the tort of defamation, the privilege is now held applicable to any communication, whether or not it amounts to a publication, and to "all torts except malicious prosecution." (

The threshold issue in determining whether the litigation privilege applies is whether the defendant's conduct was communicative or noncommunicative. ( Kimmel v. Goland (1990) 51 Cal.3d 202 , 211, 271 Cal.Rptr. 191 , 793 P.2d 524 ; Mero v. Sadoff (1995) 31 Cal.App.4th 1466 , 1480, 37 Cal.Rptr.2d 769 .) The litigation privilege "applies only to communicative acts and does not privilege tortious courses of conduct." ( Kupiec v. American Internat. Adjustment Co. (1991) 235 Cal.App.3d 1326 , 1331, 1 Cal.Rptr.2d 371 .) The "[p]leadings and process in a case are generally viewed as privileged communications." ( Navellier v. Sletten (2003) 106 Cal.App.4th 763 , 770, 131 Cal.Rptr.2d 201 .) The privilege extends to any publication required or permitted by law in the course of a judicial proceeding to achieve the objects of the litigation, even if the publication occurs outside the courtroom in the absence of a court function or the court's officers. ( Gallanis-Politis v. Medina (2007) 152 Cal.App.4th 600 , 616, 61 Cal.Rptr.3d 701 .) The privilege also applies to noncommunicative acts that are necessarily related to privileged communicative conduct. ( Ibid. )

The principal purpose of Civil Code section 47, subdivision (b) is to afford litigants and witnesses the utmost freedom of access to the courts without fear of being harassed subsequently by derivative tort actions. ( Silberg , supra , 50 Cal.3d at p. 213, 266 Cal.Rptr. 638 , 786 P.2d 365 .) The litigation privilege also promotes the effectiveness of judicial proceedings by encouraging attorneys to zealously protect their clients' interests without being concerned with subsequent derivative actions. ( Id. at p. 214, 266 Cal.Rptr. 638 , 786 P.2d 365 .) Additionally, the privilege gives finality to judgments and avoids unending litigation. ( Ibid . ) For policy reasons, even malicious or fraudulent communications are privileged under Civil Code section 47, subdivision (b). ( Silberg , at pp. 216, 218, 266 Cal.Rptr. 638 , 786 P.2d 365 .)

Plaintiff

concedes that defendants' allegedly wrongful representations were made as part of a judicial proceeding, and he does not assert that any of the four prerequisites under Silberg, supra, 50 Cal.3d 205 , 266 Cal.Rptr. 638 , 786 P.2d 365 have not been met. Instead, he contends defendants have waived that defense and argues that the privilege does not apply because his complaint "seeks to impose liability on

raise the litigation privilege in their answers. He also asserts Peltner waived the litigation privilege when he took an oath to serve as the estate's personal representative, relying on Probate Code sections 8403, 8404, subdivision (a), and 7250, subdivision (c), as well as the case of Wentland v. Wass (2005) 126 Cal.App.4th 1484 , 1494, 25 Cal.Rptr.3d 109 ( Wentland ). As to the assertion regarding Peltner, none of the Probate Code sections plaintiff relies on support his contention.

Probate Code section 8403 provides: "(a) Before letters are issued, the personal representative shall take and subscribe an oath to perform, according to law, the duties of the office. The oath may be taken and dated on or after the time the petition for appointment as personal representative is signed, and may be filed with the clerk at any time after the petition is granted. [¶] (b) The oath constitutes an acceptance of the office and shall be attached to or endorsed on the letters."

Probate Code section 8404, subdivision (a) provides: "Before letters are issued, the personal representative (other than a trust company or a public administrator) shall file an acknowledgment of receipt of a statement of duties and liabilities of the office of personal representative. The statement shall be in the form prescribed by the Judicial Council."

Probate Code section 7250, subdivision (a) states: "When a judgment or order made pursuant to the provisions of this code concerning the administration of the decedent's estate becomes final, it releases the personal representative and the sureties from all claims of the heirs or devisees and of any persons affected thereby based upon any act or omission directly authorized, approved, or confirmed in the judgment or order. For the purposes of this section, 'order' includes an order settling an account of the personal representative, whether an interim or final account." The subdivision of this section relied on by plaintiff, subdivision (c), provides: "This section shall not apply where the judgment or order is obtained by fraud or conspiracy or by misrepresentation contained in the petition or account or in the judgment as to any material fact. For purposes of this subdivision, misrepresentation includes, but shall not be limited to, the omission of a material fact."

Plaintiff does not satisfactorily explain how any of these statutes vitiate the litigation privilege. Our research has not disclosed any cases under these statutes suggesting that the personal representative of an estate waives the litigation privilege by taking an oath under the Probate Code. And Wentland merely holds that the litigation privilege does not apply to an action for breach of contract where a party makes statements in litigation that he or she previously contracted to keep confidential. Here, the complaint does not contain a cause of action for breach of contract.

"The general rule confining the parties upon appeal to the theory advanced below is based on the rationale that the opposing party should not be required to defend for the first time on appeal against a new theory that 'contemplates a factual

obtaining samples of his handwriting. ( Steiner , supra , 181 Cal.App.3d at p. 640, 226 Cal.Rptr. 694 .) They then created a forged handwritten will, under which they were named beneficiaries, and offered the will for probate. ( Ibid . ) After the American relatives pursued a successful will contest, they filed a complaint against the Germans alleging causes of action for civil conspiracy and for malicious institution of civil proceedings. ( Id. at p. 641, 226 Cal.Rptr. 694 .) The appellate court concluded the trial court had properly granted a motion to strike a claim for civil conspiracy based on the presentation of a forged document for probate, concluding the preparation and presentation of the forged will for probate constituted a privileged " 'publication' " under Civil Code section 47. ( Steiner , at p. 643, 226 Cal.Rptr. 694 .) The court noted that the Supreme Court had "showed no hesitation" in applying the privilege to intentionally false testimony made in a judicial proceeding and in concluding that the lack of an effective civil remedy against perjurers " ' "is simply part of the price

Plaintiff also cites to Feldman v. 1100 Park Lane Associates (2008) 160 Cal.App.4th 1467 , 74 Cal.Rptr.3d 1 ( Feldman ) for the proposition that the litigation privilege does not apply to causes of action for misleading statements and representations. However, the holding in that case turns on its facts. In Feldman , a property owner filed an unlawful detainer action against its tenant and subtenants. ( Id . at p. 1475, 74 Cal.Rptr.3d 1 .) The subtenants filed a cross-complaint for retaliatory eviction and numerous other causes of action, claiming, among other things, that the property owner's agent had made threats before any litigation was actually filed, including that the agent had prosecuted hundreds of evictions, so he knew the landlord would win; regardless of the outcome, the subtenants would never be able to rent another apartment in San Francisco; he knew the law and discussed the case with his uncle, a federal judge; and the subtenants would not be able to file a lawsuit because they would not win. ( Id . at pp. 1474-1475, 74 Cal.Rptr.3d 1 .) The property owner filed an "anti-SLAPP" (strategic lawsuit against public participation) motion to strike the cross-complaint under Code of Civil Procedure section 425.16, on the ground that the action arose out of protected First Amendment activity and the alleged wrongdoing was protected by the litigation privilege ( Civ. Code, § 47 ). ( Feldman , at pp. 1475-1476, 74 Cal.Rptr.3d 1 .)

The appellate court held that all of the subtenants' causes of action were barred by the litigation privilege except for a claim for negligent misrepresentation, because that cause of action did not appear to be based upon communications or communicative conduct covered by the litigation privilege. ( Feldman , supra , 160 Cal.App.4th at p. 1493, 74 Cal.Rptr.3d 1 .) Instead, the relevant communications were based on false representations made with the intent to induce the plaintiffs to move into the subleased apartment in the first place. ( Ibid . ) Once again, in the instant matter there are no allegations in the complaint concerning communications occurring

statutes governing the duties of personal representatives to refrain from fraud, such as Probate Code sections 8403 [requirement to take an oath to perform according to law] and 7250, subdivision (a) [personal representatives are subject to claims of heirs or devisees]. However, he does not cite to any cases holding that the litigation privilege does not apply in the context of probate matters involving such claims. The Steiner case, discussed above, shows that probate matters are not exempt from the litigation privilege.

Plaintiff also asserts the litigation privilege does not bar statutory causes of action for fraud. He relies on cases such as People v. Persolve, LLC (2013) 218 Cal.App.4th 1267 , 160 Cal.Rptr.3d 841 ( Persolve ). In that case, the People of the State of California filed a civil law enforcement action against a debt collection company and the company's attorneys, alleging violations of fair debt collection practices acts. ( Id. at pp. 1270-1271, 160 Cal.Rptr.3d 841 .) The parties did not dispute that the complaint was based solely on communications and acts related to judicial proceedings. ( Id. at p. 1272, 160 Cal.Rptr.3d 841 .) The trial court sustained the defendants' demurrer without leave to amend, finding the litigation privilege applied. ( Ibid . )

In reversing, the appellate court observed that "the litigation privilege is not without limit. [Citation.] Courts have found exceptions to the litigation privilege based on irreconcilable conflicts between the privilege and other coequal state laws. [Citation.] For example, the litigation privilege does not apply to perjury, subornation of perjury, false report of a criminal offense, and ' "attorney solicitation through the use of 'runners' or 'cappers.' " ' [Citation.] The recognition of these exceptions has been guided by the ' "rule of statutory construction that particular provisions will prevail over general provisions." ' [Citation.] If a statute is more specific than the litigation privilege and would be significantly or wholly inoperable if the privilege applied, the privilege will not shield violations of that statute." ( Persolve , supra , 218 Cal.App.4th at p. 1274, 160 Cal.Rptr.3d 841 .) The appellate court concluded the privilege does not apply to causes of action based on violations of the statutory fair debt collection laws provisions because application of the privilege would entirely vitiate those laws and render their protections meaningless. ( Id. at p. 1275, 160 Cal.Rptr.3d 841 .) While the case had been brought under the unfair competition law, and not directly under the relevant statutes, the court nevertheless concluded the privilege did not apply because the statutes were more specific than the litigation privilege and application of the privilege would render the prohibitions wholly inoperable.

petition. We observe extrinsic fraud is recognized as a proper ground for a collateral attack on a judgment that has been obtained under circumstances where the aggrieved party was deliberately kept in ignorance of the action or in some other way prevented from presenting a claim or defense. ( Moore v. Conliffe (1994) 7 Cal.4th 634 , 643, fn. 5, 29 Cal.Rptr.2d 152 , 871 P.2d 204 ; see Kuehn v. Kuehn (2000) 85 Cal.App.4th 824 , 833-834, 102 Cal.Rptr.2d 743 ( Kuehn ).) The instant action, however, is not a collateral attack to set aside the probate judgment, but rather an independent tort suit seeking damages from defendants: " 'Where a civil judgment is procured by extrinsic fraud, the normal remedy is to seek equitable relief from the

DISPOSITION

The judgments are affirmed.

We concur:

Margulies, Acting P.J.

Banke, J.