California Court of Appeals, First District, First Division
Francisco County Superior Court Ct. No. CGC-12-523942 Hon.
Ernest H. Goldsmith Judges, Hon. Harold H. Kahn, Judge
Office of Michael L. Boli, Michael L. Boli; Law Offices of
Carleton L. Briggs, Carleton L. Briggs, for Plaintiff and
Office of Thomas C. Tagliarini, Thomas C. Tagliarini, for
Defendant and Respondent Arndt Peltner
A. Kapur for Defendant and Respondent Alice Brown Traeg
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).
BACKGROUND AND PROCEDURAL HISTORY
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).)
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.
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.
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.
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.
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.
April 24, 2014, this court issued the remittitur.
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.
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.
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
December 9, 2015, judgment was entered in favor of Peltner.
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
February 4, 2016, plaintiff filed a notice of appeal from the
December 9, 2015 judgment.
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.
February 16, 2016, plaintiff filed his motion for a new