Herterich v. Peltner

• Court: California Court of Appeals
• Writing for the Court: Dondero, J.
• Citation: Herterich v. Peltner, 229 Cal.Rptr.3d 744, 20 Cal.App.5th 1132 (Cal. App. 2018)
• Decision Date: 01 March 2018
• Docket Number: A147554
• Parties: Norman Bartsch HERTERICH, Plaintiff and Appellant, v. Arndt PELTNER et al., Defendants and Respondents.

20 Cal.App.5th 1132

229 Cal.Rptr.3d 744

Norman Bartsch HERTERICH, Plaintiff and Appellant,

v.Arndt PELTNER et al., Defendants and Respondents.

A147554

Court of Appeal, First District, Division 1, California.

Filed March 1, 2018

As Modified on Denial of Rehearing March 28, 2018

Law Office of Michael L. Boli, Michael L. Boli ; Law Offices of Carleton L. Briggs, Carleton L. Briggs, for Plaintiff and Appellant

Law Office of Thomas C. Tagliarini, Thomas C. Tagliarini, Emeryville, for Defendant and Respondent Arndt Peltner

Andrew A. Kapur, for Defendant and Respondent Alice Brown Traeg

Dondero, J.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 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 ).

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.

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.

DISCUSSION

I. Standard of Review

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.)

II. Plaintiff's Allegations

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."

III. The Litigation Privilege

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." ( Silberg v. Anderson (1990) 50 Cal.3d 205, 212, 266 Cal.Rptr. 638, 786 P.2d 365 ( Silberg ); see Drum v. Bleau, Fox & Associates (2003) 107 Cal.App.4th 1009, 1022–1023, 132 Cal.Rptr.2d 602.) The litigation privilege applies to any communication (1) made in judicial or quasi-judicial proceedings; (2) by litigants or other participants authorized by law; (3) to achieve the objects of the litigation; and (4) that have some connection or logical relation to the action. ( Silberg, at p. 212, 266 Cal.Rptr. 638, 786 P.2d 365.)¹ The litigation privilege also extends to communications that have some relation to an anticipated proceeding. ( Rubin v. Green (1993) 4 Cal.4th 1187, 1194, 17 Cal.Rptr.2d 828, 847 P.2d 1044.)

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...