A Lawsuit over a Lawsuit Meets the Bar of § 47(b)

Herterich v. Peltner, No. A147554 (D1d2, as modified Mar. 28, 2018)

Plaintiff, a disinherited Son in a probate dispute, sued Executor and his Attorney for making various statements alleged to be false during the probate case. The trial court ruled against Son on the merits. He appealed. The Court of Appeal, however, noticed that there’s something more fundamentally problematic about this lawsuit—it is a lawsuit over a lawsuit. So it ordered briefing on whether the litigation privilege in Civil Code § 47(b) bars Son’s claim. It does. 

Of course, Executor and Attorney didn’t raise that defense in the trial court, so Son claims they waived it. But the Court doesn’t find that to be much of a barrier, because it presents a pure question of law applied to undisputed facts. Appellate courts have the discretion to consider purely legal questions first raised on appeal. The Court elects to do so here. 

As the Court explains, § 47(b) can and has been applied to lawsuits based on alleged fraudulent representations made in the course of prior probate proceedings. The fact that the probate code puts specific duties of candor on executors and their representatives does not vitiate the privilege in some later case. None of these statutory duties are fundamentally inconsistent with privileging statements made during the course of litigation from serving as the basis of future liability in tort. To the contrary, if a party is defrauding the court in a probate proceeding, the remedy for that fraud is in the probate case itself—including various procedures that permit for post-judgment relief—not by filing a separate lawsuit. 

Affirmed.