Herterich v. Peltner

Filed 3/1/18
CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE

NORMAN BARTSCH HERTERICH,
Plaintiff and Appellant,
A147554
v.
ARNDT PELTNER et al., (San Francisco County
Super. Ct. No. CGC-12-523942)
Defendants and Respondents.

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
(Bartsch I) and Estate of Bartsch (Jan. 30, 2014, A135322) [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

2
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.”

3
 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; Guz v. Bechtel National, Inc.
(2000) 24 Cal.4th 317, 334.)
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.”

4
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 (Silberg); see Drum v. Bleau, Fox & Associates (2003)
107 Cal.App.4th 1009, 1022–1023.) 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.)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.)
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; Mero v. Sadoff (1995) 31 Cal.App.4th 1466, 1480.)
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.) The “[p]leadings and process in a case are generally
viewed as privileged communications.” (Navellier v. Sletten (2003) 106 Cal.App.4th
763, 770.) 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

1
There are four statutory exceptions to the litigation privilege. The first exception
is limited to certain proceedings for marital dissolution or legal separation (Civ. Code,
§ 47, subd. (b)(1)). The second exception is limited to communications made in
furtherance of intentionally destroying or altering physical evidence (Civ. Code, § 47,
subd. (b)(2)). The third exception is limited to knowing concealment of an insurance
policy (Civ. Code, § 47, subd. (b)(3)). The fourth exception is limited to the recording of
certain lis pendens (Civ. Code, § 47, subd. (b)(4)). None of these exceptions apply to this
case.

5
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.) 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.)
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.) 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.)
IV. The Litigation Privilege Applies to Plaintiff’s Complaint
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 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 [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 (Shafer).) Plaintiff correctly notes that defendants did not
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

6
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 (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.”

7
 Plaintiff does not satisfactorily explain how any of these statues 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 situation the
consequences of which are open to controversy and were not put in issue or presented at
the trial.’ ” (Ward v. Taggart (1959) 51 Cal.2d 736, 742.) Although ordinarily a party
may not deprive his opponent of an opportunity to meet an issue in the trial court by
changing his theory on appeal, this rule does not apply when, as in this case, the relevant
facts are not disputed and the party merely raises a new question of law.2 (Ibid.)
Accordingly, because the application of the litigation privilege raises a question of law,
we may consider this issue for the first time on appeal. (See People v. Smith (2001)
24 Cal.4th 849, 852.)

2
Plaintiff asserts the litigation privilege issue raises questions of fact that were not
conclusively determined by the trial court. However, he does not draw our attention to
any relevant facts that he claims have not been conclusively determined. For purposes of
this appeal, we will assume that plaintiff’s allegations in the complaint are true. He also
relies on a case that was dismissed on jurisdictional grounds before the motion for
summary judgment was decided (Dale v. Dale (1998) 66 Cal.App.4th 1172, 1176–1177).
That procedural circumstance is not present in this case.

8
 B. Application
1. Breach of Duty to Truthfully Disclose Material Facts
Plaintiff first asserts the litigation privilege does not apply because the complaint
is based on defendants’ breaches of duties of disclosure and truthfulness. However, the
litigation privilege extends to fraudulent statements, even when made to a court, if they
were made in furtherance of litigation. (Boston v. Nelson (1991) 227 Cal.App.3d 1502,
1507 [intentional misstatements and misleading statements by attorney to trial court were
privileged because made in furtherance of litigation].) “ ‘The “furtherance” requirement
was never intended as a test of a participant’s motives, morals, ethics or intent.’ ” (Ibid.,
quoting Silberg, supra, 50 Cal.3d at p. 220.) While plaintiff highlights statutes that
require personal representatives and their attorneys to act ethically and to truthfully
disclose all material facts, courts have held that the litigation privilege applies to probate
matters, including cases in which the relevant communication involves forgery or
falsification of documents, such as the presentation for probate of a forged will. (Steiner
v. Eikerling (1986) 181 Cal.App.3d 639, 642–643 (Steiner).)
In Steiner, a California resident died while on vacation in West Germany. His
German relatives kept the death a secret and moved into his home, obtaining samples of
his handwriting. (Steiner, supra, 181 Cal.App.3d at p. 640.) 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.) 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.) The court noted that the Supreme Court had
“showed no hesitation” in applying the privilege to intentionally false testimony made in

9
a judicial proceeding and in concluding that the lack of an effective civil remedy against
perjurers “ ‘ “is simply part of the price 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, quoting Ribas v. Clark (1985) 38 Cal.3d 355, 365.)
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, quoting Edwards v. Centex Real Estate Corp. (1997) 53 Cal.App.4th 15, 30.) While
we by no means condone intentionally deceptive conduct before the courts, the litigation
privilege is absolute.

10
 Plaintiff also asserts that a person harmed by a breach of the duties to disclose and
to communicate accurate information has a right to seek judicial redress. However,
almost all of the cases that he cites to for this proposition do not invoke the application of
the litigation privilege. In the sole exception, LiMandri v. Judkins (1997) 52 Cal.App.4th
326, the appellate court concluded the alleged course of conduct forming the basis for the
plaintiff’s cause of action for intentional interference with contractual relations, which
included the filing of a notice of lien, was not privileged because the conduct was
essentially noncommunicative and was neither related to pending litigation nor in
anticipation of a subsequent interpleader action. (Id. at p. 348.) Here, plaintiff’s
complaint is based entirely on a theory of fraudulent miscommunications relating to and
arising out of the prior probate proceeding.3
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, 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.)

3
In his opening brief, plaintiff describes his three causes of action as follows:
“(1) [Defendants] breached their duty of disclosure when they petitioned for probate of
the Will while concealing that [plaintiff] was (or reasonably could be) Bartsch’s child
[citation]; (2) [Defendants] breached their duty to serve notice of the probate on
[plaintiff], who [defendants] knew was or reasonably could be Bartsch’s child [citations];
(3) [Defendants] breached their duty of good faith by intentionally presenting false
evidence in the pretermission litigation, misrepresenting to the court and to [plaintiff] that
Bartsch had provided [defendant] with information from which it must be concluded that
[plaintiff] was Bartsch’s child.” (Italics in original.)

11
 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.) 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.) 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.) 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.
Plaintiff also cites to Feldman v. 1100 Park Lane Associates (2008)
160 Cal.App.4th 1467 (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.) 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.) 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.)

12
 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.) 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 outside of the context of the prior probate
litigation.4
2. Statutory Duties
Plaintiff argues that the litigation privilege does not apply because its effect would
be to render other coequal statutes inoperable. He cites again to 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.

4
Other cases relied on by plaintiff are also distinguishable in that their holdings
are highly fact-specific. For example, in Rickley v. Goodfriend (2013) 212 Cal.App.4th
1136, the appellate court held that the litigation privilege did not protect attorney-
defendants’ communications or conduct that interfered with a court-ordered remediation
plan because the conduct had the intended effect of actively assisting their clients in
continuing a nuisance, involved nonparticipants to the litigation, and did not constitute an
attempt to achieve the objects of the litigation. (Id. at p. 1148.) Plaintiff also cites to
cases holding that the litigation privilege does not apply to legal malpractice actions.
Here, the allegations do not concern claims brought by a former client against his or her
attorney.

13
 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 (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.) The
parties did not dispute that the complaint was based solely on communications and acts
related to judicial proceedings. (Id. at p. 1272.) 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.) 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.) 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. (Id. at pp. 1276–1277.)

14
 We first note that plaintiff’s complaint does not contain any statutory actions, nor
does it make reference to any statutes.5 Instead, his claims are based on theories of
common-law fraud. Courts have observed: “The litigation privilege has been applied in
‘numerous cases’ involving ‘fraudulent communication or perjured testimony.’ ”
(Flatley v. Mauro (2006) 39 Cal.4th 299, 322.) Further, the statutes at issue in Persolve
were enacted for the protection of the public, requiring them to be “interpreted broadly in
favor of their protective purpose.” (Persolve, supra, 218 Cal.App.4th at p. 1277.) The
Probate Code sections plaintiff relies on are not similarly protective of the public. Other
cases cited to by plaintiff are inapposite.6
Plaintiff asserts allowing defendants to claim the litigation privilege hinders the
policy of allowing access to the courts because their actions “deprived [him] of timely
access to the court.” We are not convinced. While the complaint alleges that plaintiff
was not initially served with the petition for probate, we can attest that he has diligently
pursued the underlying merits of his claims regarding his entitlement to his father’s
estate. In the context of equitable relief, courts have observed: “ ‘If the aggrieved party
had a reasonable opportunity to appear and litigate his claim or defense, fraud occurring
in the course of the proceeding is not a ground for equitable relief. The theory is that
these matters will ordinarily be exposed during the trial by diligence of the party and his
counsel, and that the occasional unfortunate results of undiscovered perjury or other
intrinsic fraud must be endured in the interest of stability of final judgments.’ [Citation.]

5
Plaintiff belatedly asserts his complaint alleges facts sufficient to state statutory
causes of action under Civil Code sections 1709, 1710, 2223, and 2224, as well as
Probate Code sections 8002, subdivision (a)(3); 8007, subdivision (b)(1); 8110,
subdivision (a); and 7250. He did not alleged claims under these statutes in his
complaint.
6
For example, plaintiff cites to Haneline Pacific Properties, LLC v. May (2008)
167 Cal.App.4th 311, a case in which the appellate court found the privilege did not
apply because the statements at issue were not made in anticipation of litigation. (Id. at
pp. 319–320.)

15
The reason for this rule is that litigation must at some point come to an end.” (Mercury
Casualty Co. v. Superior Court (1986) 179 Cal.App.3d 1027, 1034–1035.) The same
principles apply to the instant case.
3. Extrinsic Fraud
Plaintiff contends the privilege should not apply to publications that “violate due
process and perpetuate extrinsic fraud.” He claims defendants committed extrinsic fraud
by not timely serving him with notice of the probate petition and depriving him a fair
hearing on his pretermission 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; see Kuehn v. Kuehn (2000) 85 Cal.App.4th 824, 833–
834 (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 judgment, not to sue in tort.’ ” (Kuehn, at p. 834, 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

16
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.)
DISPOSITION
The judgments are affirmed.

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 _________________________
Dondero, J.

We concur:

_________________________
Margulies, Acting P. J.

_________________________
Banke, J.

A147554 Herterich v. Peltner et al.

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Trial Court: San Francisco County Superior Court

Trial Judges: Hon. Ernest H. Goldsmith
Hon. Harold H. Kahn

Counsel:

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, for Defendant and
Respondent Arndt Peltner

Andrew A. Kapur for Defendant and Respondent Alice Brown Traeg

A147554 Herterich v. Peltner et al.

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