After losing his suit to inherit from his deceased father as a pretermitted heir, plaintiff sued the father’s executor and his attorney for fraud in having checked the box on the Judicial Council form probate petition indicating that the father had no children and in not serving plaintiff though the defendants allegedly knew plaintiff was the decedent’s son and entitled to notice. This decision affirms the dismissal of the complaint, upholding the trial court’s determination that the alleged misrepresentations were all immunized by the absolute litigation privilege under Civ. Code 47(b). Defendants did not waive their right to rely on the privilege on appeal by failing to raise it in the trial court. The existence of the privilege is a question of law based on the undisputed facts in this case. Also, the privilege applies in probate proceedings and to statements by the executor despite Probate Code sections requiring the executor to take an oath to act ethically and to truthfully disclose all material facts.
California Court of Appeal, First District, Division One (Dondero, J.); March 1, 2018; 2018 WL 1100757.