Herterich vs. Peltner, et al.

20 Cal.App.5th 1132
Filed March 1, 2018
California Court of Appeal, First District, Div. 1

By Golnaz Yazdchi
Sheppard Mullin Richter & Hampton LLP

In prior probate proceedings plaintiff Norman Bartsch Herterich made a claim to his father Hans Bartsch’s entire estate as an omitted child on the basis that Bartsch either did not believe, or forgot, that he had a child when he executed his will. The probate court granted summary judgment against plaintiff, and concluded that substantial evidence showed that Bartsch was aware of plaintiff’s existence when he executed his will. The Court of Appeal affirmed. Plaintiff then sued defendants Arndt Peltner, the executor, and Alice Brown Traeg, the executor’s attorney, for intentional fraudulent misrepresentation, negligent misrepresentation, and fraudulent concealment. Plaintiff alleged that defendants deprived plaintiff of the opportunity to object to the probate petition because when defendants initially filed the probate petition they stated under penalty of perjury that the decedent had no children. As a result, plaintiff alleged that he was led to believe that Bartsch (his father) was not aware that he had a son, or had forgotten it, which caused plaintiff to incur significant legal fees in bringing his claim against the estate. Plaintiff alleged damages because the court relied on defendants’ alleged misrepresentations in rendering rulings adverse to plaintiff. The court granted defendants’ motion for summary judgment on the basis that plaintiff had suffered no damages from defendants’ actions because he had no beneficial interest in the estate.

The Court of Appeal affirmed, but on the basis of the litigation privilege. The Court held that even fraudulent statements made by defendants in the course of the probate proceedings were protected by the privilege when the communications occurred in the context of a judicial proceeding. The Court reasoned that the personal representative of an estate does not waive the litigation privilege by taking an oath of truthfulness under the Probate Code, and that courts have held that the litigation privilege applies to statements made in furtherance of litigation in probate matters even when the relevant communication involves fraudulent statements, forgery, or falsification of documents.