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Thomas C. Tagli ini (State Bar #: 1004s
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LAW OFFI MAS C. TAGLIARINI ELECTRONICALLY
2200 Powell Street, Suite 1050 FILED
Em le, California 94608 Superior Court of Caiifornia,
Felee! se ( | 19) a County of San Francisco
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e-mail; Tom@Tagliarinilaw.com 03/13/2019
BY: ALISON AGBAY
Attorney for Executor, ARNDT PELTNER Deputy Clerk
SUPERIOR COURT FOR THE STATE OF CALIFORNIA
SAN FRANCISCO COUNTY
IN THE ESTATE OF HANS HERBERT Case No.: PES-08-291846
BARTSCH /
DECLARATION OF THOMAS C.
NORMAN HERTERICH TAGLIARINI IN SUPPORT OF PETITION
Petitioner, FOR COURT APPROVAL OF
PROPOSED SETTLEMENT
ve
DATE: 9:00 a.m.
DATE: , 2019
ARNDT PELTNER, DEPT: 204
RESERVATION #:
Respondent. / [ Probate Code § 9836 et seq.]
DECLARATION OF THOMAS C. TAGLIARINI
I, Thomas C. Tagliarini am an attorney at law duly authorized to practice law before all courts of the
State of California. I am the attorney of record for Arndt Peltner as Executor of the Estate of Hans Herberj
Bartsch. As such, I have personal knowledge of the following facts. As to those matters stated herein upon
information and belief, I believe them to be true:
1 Attached hereto and marked as Exhibit 1 is a true and correct copy of the February 20, 2019
opinion filed by Court of Appeal filed in A151783 (appeal 7) affirming this Court’s ruling denying
Herterich’s Petition to Set Aside Probate Rulings rendered in 2008 admitting the subject will to probate and
PETITION FOR COURT APPROVAL OF PROPOSED SETTLEMENT
1oo wm ND NH YN
designating Arndt Peltner as the duly nominated Executor of the Estate.
2. Attached hereto and marked as Exhibit 2 is a true and correct copy of the February 21, 2019
Order from the Court of Appeal demanding the parties, in light of the opinion it had filed the day before, to|
file letter briefs within fifteen (15) days on the issue whether Herterich had standing to maintain pending
appeals (A155109, A155400 and A156231.)
3. On or about February 22, 2019 I contacted the Clerk for Division 1 of the Court of Appeal t
determine whether or not the Court of Appeal intended to exclude A156367 (appeal 11) from their order.
The clerk advised me that for some reason unknown to her that appeal A156367 was not electronically linked)
to the other three pending appeals.
4, Attached hereto and marked as Exhibit 3 is a true and correct copy of the Proposed Settlemen
Agreement,
5. Herterich has notified the Court of Appeal of the Proposed Settlement and has requested |
stay of the pending appellate matters pending this Court's determination of this Petition. The Court of Appeal
has issued a stay of the pending appellate matters but only up to April 30, 2019.
6. I declare under penalty of perjury, under the laws of the State of California the foregoing is
true and correct. [ could testify competently to the foregoing if called as a witness to dose...
Executed this 13" day of March, 2019 in Emeryvittes Cal i
PETITION FOR COURT APPROVAL OF PROPOSED SETTLEMENT
2EXHIBIT 1Filed 2/20/19
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION ONE
Estate of HANS HERBERT BARTSCH,
Deceased.
NORMAN BARTSCH HERTERICH,
Objector and Appellant,
v.
ARNDT PELTNER, as Executor, etc.,
Defendant and Respondent.
A151783
(San Francisco County
Super. Ct. No. PES-082-91846)
This is the sixth appeal by appellant Norman Bartsch Herterich involving the
estate of his father, decedent Hans Herbert Bartsch (Estate). We previously upheld the
probate court’s determination that appellant has no claim to the Estate as a pretermitted
child. We affirmed the trial court’s summary judgment order dismissing a separate civil
fraud action brought by appellant against Arndt Peltner, the executor of the Estate, and
Peltner’s attorney, Alice Brown Traeg. We dismissed two other appeals after concluding
appellant lacked standing because he has no interest in the Estate. Our orders made clear
that dismissal was required under the law of the case and that we would not revisit our
prior rulings. Undeterred, appellant moved to set aside orders entered by the probate
court more than a decade ago. He now appeals from the denial of his motion. We
conclude, once again, that appellant does not have standing to raise this appeal anddismiss it for lack of jurisdiction. We also order sanctions for pursuing this frivolous
appeal in the amount of $5,950, payable to Peltner, in his capacity as executor.!
FACTUAL AND PROCEDURAL BACKGROUND
I. History of Litigation
As we stated previously, “[t]he background to this case is well known to this court
and the parties.” (Herterich v. Peltner (2018) 20 Cal.App.5th 1132, 1135 (Herterich).)
This litigation concerns Bartsch’s will, which does not name appellant or designate him
to receive any share of the Estate. We take judicial notice of our prior opinions and
orders” and summarize the pertinent facts.
Bartsch’s will was admitted to probate in December 2008. In April 2009,
appellant filed a pretermission petition seeking to obtain the Estate under the theory that
he is Bartsch’s son and had been unintentionally omitted from his father’s will. In
December 2011, the probate court granted executor Peltner’s motion for summary
judgment after finding that appellant was not a pretermitted heir and had been
intentionally disinherited by Bartsch. Appellant filed a notice of appeal.
While the appeal was pending, appellant filed a civil fraud action against Peltner
and Traeg, alleging they committed fraud by filing a petition to administer the probate of
the Estate that falsely asserted Bartsch had no children, and by failing to serve him with
notice of the petition when they knew or should have known that appellant was
decedent’s son and was entitled to notice. (See Herterich, supra, 20 Cal.App.Sth at
| Appellant has since filed three more appeals in this matter. By separate order,
we will order the parties to brief why these appeals should not be dismissed for lack of
standing.
2 Estate of Bartsch (2011) 193 Cal.App.4th 885 (Bartsch 1), Estate of Bartsch
(Jan. 30, 2014, A135322 [nonpub. opn.]) (Bartsch IN, Peltner v. Herterich (A136646,
dism. Apr. 28, 2015), Herterich v. Peltner (A143565, dism. Apr. 28, 2015), Herterich,
supra, 20 Cal.App.Sth 1132.p. 1136.) Such actions, appellant alleged, deprived him of the opportunity to object or to
assert a claim against the Estate.
In 2014, we affirmed the probate court’s ruling that appellant was not a
pretermitted heir. We “conclude[d] that the trial court properly found there is no triable
issue of fact as to whether decedent was unaware of objector’s birth,” observing “it
stretches credulity to posit that after making approximately 228 monthly child support
payments, decedent would have lost all awareness of objector’s birth or of his status as
objector’s presumed father.” (Bartsch II, supra, A135322, at pp. *11-*12.) We
accordingly held that “the court properly concluded he is not entitled to a share of the
estate as an omitted child.” (Jd. at p. *11.)
The following year, we dismissed two other appeals filed by appellant challenging
the probate court’s orders approving payment of Peltner’s attorney fees and expenses,
and approving the sale of two parcels of real property owned by the Estate. (Peltner v.
Herterich, supra, A136646; Herterich v. Peltner, supra, A143565.) Because Bartsch II
had conclusively established that appellant has no interest in the Estate, we concluded
appellant lacked standing. Our orders noted Bartsch II is the law of the case.
Peltner and Traeg successfully moved for summary judgment in the civil fraud
action. (Herterich, supra, 20 Cal.App.Sth at p. 1137.) In March 2018, we affirmed both
of the trial court’s judgments, holding that appellant’s claims were barred by the litigation
privilege under Civil Code section 47, subdivision (b). (Herterich, at p. 1135.)
II. The Present Appeal
Appellant’s present appeal is from the probate court’s order denying his motion to
set aside probate orders under Probate Code section 8007.3 On March 3, 2017, appellant
filed a motion to set aside the probate court’s December 2008 orders admitting Bartsch’s
3 An order denying a motion to set aside an order admitting a will to probate is an
appealable order. (Estate of Estrem (1940) 16 Cal.2d 563, 566.) All further undesignated
statutory references are to the Probate Code.
3will to probate and appointing Peltner as executor. The motion asserted that extrinsic
fraud was present in the procurement of the orders, statutory notice of the probate
proceedings had not been satisfied, appellant was deprived of a fair hearing, and the
orders were void.
The probate court denied appellant’s motion. The court found that appellant had
filed an untimely motion and had waived any notice defects by making a general
appearance in the probate proceeding with his April 2009 pretermission petition.* The
court also determined that the orders were not void because appellant has been given
many opportunities to appear and contest the petition, as evidenced by his numerous
challenges and appeals relating to this matter.
Appellant filed a notice of appeal from the April 21, 2017 order. On August 2,
2017, Peltner filed a motion to dismiss the appeal on the basis that appellant has no
standing because he has no beneficial interest in the Estate, relying in part on our prior
dismissal orders. Peltner also requested that we impose monetary sanctions for the filing
of a frivolous appeal. Appellant opposed the motion to dismiss, and asserted he had
standing to appeal, in part, because he “has been assigned testate distribution rights.” He
claimed Peltner’s motion to dismiss was frivolous, and asked that Peltner be sanctioned
for bringing it.
On September 1, 2017, we denied Peltner’s motion to dismiss and denied
appellant’s motion for sanctions. We notified the parties that Peltner’s request for
sanctions would be considered along with this appeal.
4 Under section 8270, subdivision (a) of the Probate Code, a petition to revoke the
probate of a will must be brought within 120 days after the will is admitted to probate.
Under Code of Civil Procedure section 473, subdivision (b), a motion to set aside an
order must be brought within a reasonable time, but in no case more than six months after
the order was entered. Rather than file a timely motion under either of the preceding
statutes, appellant elected to file a pretermission petition instead.
4DISCUSSION
I. The Appeal Must Be Dismissed
We revisit the question of standing and conclude this appeal must be dismissed
because appellant is not an “aggrieved party” within the meaning of Code of Civil
Procedure section 902.5
Whether a party has standing to appeal is a question of law. (IBM Personal
Pension Plan v. City and County of San Francisco (2005) 131 Cal.App.4th 1291, 1299.)
An appeal may be taken on an appealable order or judgment, but only by those who have
standing to appeal, which is jurisdictional. (Sabi v. Sterling (2010) 183 Cal.App.4th 916,
947.) “Standing to appeal is ‘jurisdictional and therefore cannot be waived.’ ” (Marsh v.
Mountain Zephyr, Inc. (1996) 43 Cal.App.4th 289, 295.) If a party has no standing to
appeal, this court has no jurisdiction to entertain the appeal and must dismiss.
“Not every party has standing to appeal every appealable order. Although
standing to appeal is construed liberally, and doubts are resolved in its favor, only a
person aggrieved by a decision may appeal.” (Jn re K.C. (2011) 52 Cal.4th 231, 236.)
“One is considered ‘aggrieved’ whose rights or interests are injuriously affected by the
judgment. [Citations.] Appellant’s interest ‘ “must be immediate, pecuniary, and
substantial and not nominal or a remote consequence of the judgment.” ’” (County of
Alameda v. Carleson (1971) 5 Cal.3d 730, 737.) In probate matters, standing to appeal
requires that a party “hav[e] an interest recognized by law in the subject matter of the
judgment, which interest is injuriously affected by the judgment... .” (Estate of Colton
(1912) 164 Cal. 1, 5.)
As we previously held when we dismissed appellant’s two prior appeals, Bartsch
II conclusively determined that appellant has no interest in the Estate and therefore lacks
5 Code of Civil Procedure section 902 provides: “Any party aggrieved may appeal
in the cases prescribed in this title. A party appealing is known as an appellant, and an
adverse party as a respondent.”standing to prosecute an appeal. Appellant offers no explanation why the law of the case
should not apply to foreclose his latest appeal.
Unlike res judicata and collateral estoppel, both of which arise after entry of final
judgment in one lawsuit and the commencement of another suit, the law of the case
doctrine operates within the proceedings of a single lawsuit. “ ‘Under the law of the case
doctrine, when an appellate court “ ‘states in its opinion a principle or rule of law
necessary to the decision, that principle or rule becomes the law of the case and must be
adhered to throughout [the case’s] subsequent progress, both in the lower court and upon
subsequent appeal ....’” [Citation.] Absent an applicable exception, the doctrine
“requir[es] both trial and appellate courts to follow the rules laid down upon a former
appeal whether such rules are right or wrong.” [Citation.] As its name suggests, the
doctrine applies only to an appellate court’s decision on a question of law; it does not
apply to questions of fact.’ ” (Investors Equity Life Holding Co. v. Schmidt (2015)
233 Cal.App.4th 1363, 1377.) Law of the case may apply even where the appeal is from
a decision “short of a full trial, including a judgment on a demurrer, a nonsuit order or
[other] motion.” (Hotels Nevada, LLC v. L.A. Pacific Center, Inc. (2012)
203 Cal.App.4th 336, 356.)
Appellant’s standing has been an issue from the outset of our involvement in this
matter. In Bartsch I, supra, 193 Cal.App.4th 885, we considered whether appellant had
standing to appeal an interim award of attorney fees and costs incurred by Peltner. At
that stage of the litigation, the probate court had not yet ruled on appellant’s
pretermission petition. We requested supplemental briefing concerning appellant’s
standing to appeal the challenged interim orders. (Jd. at pp. 889-891.) We concluded
that he had standing to appeal because, were he to prevail in the underlying action, the
award of attorney fees would have placed him “at a financial disadvantage by
diminishing the estate.” (Jd. at p. 891.) We also considered the fact that he had been
served with notice of the petition for the award of interim attorney fees. (Jbid.)
6Subsequently, in Bartsch II, supra, A135322, we affirmed the probate court’s
determination that appellant was not a pretermitted heir. We held that “the court properly
concluded he is not entitled to a share of the estate as an omitted child.” (/d. at p. *12,
italics added.) This statement was a principle or rule of law necessary to our decision
affirming the lower court’s summary judgment ruling. This issue was finally determined
over four years ago.
When we dismissed appellant’s appeals in 2015, Peltner v. Herterich, supra,
136646, and Herterich v. Peltner, supra, A143565, we explained that appellant’s lack
of interest in the Estate was fatal to his appeals. Having no interest in the Estate,
appellant cannot be aggrieved by the lower court’s orders approving matters involving
the Estate’s administration. We noted that Bartsch II is the law of the case and declined
appellant’s invitation to revisit it.
Finally, we concluded in Herterich that appellant’s “claims for damages in [his
civil fraud action] are based entirely on representations made by defendants in connection
with the probate proceedings and therefore his claims are barred by the litigation
privilege under Civil Code section 47, subdivision (b).” (Herterich, supra,
20 Cal.App.Sth at p. 1135.) This rule of law was central to our opinion affirming the
grant of summary judgment in favor of Peltner and Traeg, and it, too, is law of the case.
Taken together, these points of law are determinative that appellant is not an
“aggrieved party” within the meaning of Code of Civil Procedure section 902. Because
he has no cognizable interest in the Estate and has suffered no legal injury from the filing
of the probate petition and the related judicial proceedings, appellant has no standing to
appeal the probate court’s order denying his motion to set aside probate orders that were
entered more than 10 years ago.°
6 It is not altogether clear why, following Bartsch II and our subsequent orders
dismissing appellant’s appeals, appellant’s motions and petitions are still being
entertained by the probate court. Whether appellant has since acquired an interest in the
7“Like res judicata, the doctrine of the law of the case serves to promote finality of
litigation by preventing a party from relitigating questions previously decided by a
reviewing court.” (George Arakelian Farms, Inc. v. Agricultural Labor Relations Bd.
(1989) 49 Cal.3d 1279, 1291.) The time for appellant to litigate points of law that have
been conclusively resolved by this court has long since passed.
II. Motion for Sanctions is Granted
As noted above, Peltner moved for sanctions against appellant for filing a
frivolous appeal. Appellant opposed the motion. Although we denied Peltner’s motion
to dismiss, we notified the parties that the request for sanctions would be considered in
conjunction with this appeal. (Cal. Rules of Court, rule 8.276(c).) This portion of our
opinion constitutes the written statement of reasons required for imposition of sanctions
against appellant. (See Jn re Marriage of Flaherty (1982) 31 Cal.3d 637, 654
(Flaherty).)'
A. Legal Standards
Code of Civil Procedure section 907 provides: “When it appears to the reviewing
court that the appeal was frivolous or taken solely for delay, it may add to the costs on
appeal such damages as may be just.” Sanctions may be imposed when an appeal is
prosecuted for an improper motive, such as to harass the respondent or delay finality, or
when the appeal indisputably has no merit—when any reasonable attorney would agree
that the appeal is totally and completely without merit. (Kleveland v. Siegel & Wolensky,
Estate through an “assignment of inheritance expectancy,” as he now contends, is not
properly before the court. The question of appellant’s standing based on a purported
assignment of testate distribution rights should be determined by the probate court in the
first instance.
7 Flaherty also requires a party to be afforded a hearing prior to imposition of
sanctions. (31 Cal.3d at p. 654.) Appellant was given notice that the court was
contemplating the imposition of sanctions but waived oral argument.
8LLP (2013) 215 Cal.App.4th 534, 556 (Kleveland); see Cal. Rules of Court, rule
8.276(a)(1).)
In Flaherty, the Supreme Court explained the rationale for the imposition of
sanctions against a party by a reviewing court: “An appeal taken for an improper motive
represents a time-consuming and disruptive use of the judicial process, Similarly, an
appeal taken despite the fact that no reasonable attorney could have thought it meritorious
ties up judicial resources and diverts attention from the already burdensome volume of
work at the appellate courts.” (Flaherty, supra, 31 Cal.3d at p. 650.)
“In determining whether an appeal indisputably has no merit, California cases
have applied both subjective and objective standards. The subjective standard looks to
the motives of the appealing party and his or her attorney, while the objective standard
looks at the merits of the appeal from a reasonable person’s perspective.” (Kleveland,
supra, 215 Cal.App.4th at p. 556.) Whether the party or attorney acted in an honest
belief there were grounds for appeal is irrelevant “if any reasonable person would agree
the grounds for appeal were totally and completely devoid of merit.” (Jd. at pp. 556-
557.) The objective and subjective standards “are often used together, with one
providing evidence of the other. Thus, the total lack of merit of an appeal is viewed as
evidence that appellant must have intended it only for delay.” (Flaherty, supra,
31 Cal.3d at p. 649.)
The determination whether an appeal is frivolous should be approached with
caution. Courts recognize that counsel and their clients have a right to present issues that
are arguably correct, even if it is extremely unlikely that they will prevail on appeal.
(Flaherty, supra, 31 Cal.3d at p. 650.) “An appeal that is simply without merit is not by
definition frivolous and should not incur sanctions.” (Jbid., italics omitted.)B. Analysis
We begin with the obvious ground for imposition of sanctions—this appeal is
patently frivolous. Bartsch IJ settled the question that appellant was intentionally
disinherited and has no interest in the Estate. Appellant evidently ignored our opinion
and proceeded to challenge the probate court’s orders approving payment of Peltner’s
attorney fees and expenses, and approving the sale of two parcels of real property owned
by the Estate. In dismissing his appeals from these orders in 2015, we could not have
been clearer that Bartsch II is the law of the case and appellant’s lack of interest in the
Estate deprived him of standing. (Peltner v. Herterich, supra, A136646; Herterich v.
Peltner, supra, A143565.)
We also rejected appellant’s contention that he has standing based on his separate
civil fraud action against Peltner and Traeg. Appellant argued that if he prevailed in the
fraud action, the orders admitting the will to probate must be set aside and he will have an
opportunity to contest the will. We concluded that the civil fraud action did not accord
him standing, explaining that appellant suffered no prejudice and was not deprived of the
opportunity to challenge the will. After all, appellant intervened in the probate
proceedings within four months of their commencement and has vigorously contested
and objected to the administration of the Estate over the past (now) nine years.
It is the law of the case that appellant lacks standing to contest orders from the
probate court, and yet appellant filed a motion to set aside the probate court’s 2008 orders
admitting the will to probate and appointing Peltner as executor, and then filed the instant
appeal from the denial of his motion. No reasonable attorney could possibly conclude
that appellant has standing to challenge the probate court’s 2008 orders—particularly on
grounds we rejected as the basis for his standing argument in 2015. We conclude it was
objectively frivolous for appellant to file the current appeal.
We also find appellant’s briefing on the question of standing to be devoid of any
merit. In opposing Peltner’s motion to dismiss the pending appeal, appellant advances
10three arguments: (1) “[T]he appeal in [Bartsch IN] did not decide that [appellant] has ‘no
beneficial interest’ in Bartsch’s estate; that appeal merely decided that Bartsch was aware
when he signed his will that Herterich was Bartsch’s child, and Herterich therefore is not
a pretermitted child” (italics in original); (2) appellant has an interest in the subject of the
set-aside motion and is aggrieved by the order denying it because as “intestate heir,”
appellant would inherit Bartsch’s estate and be given priority for appointment as
administrator if the probate orders had been set aside; and (3) appellant has an interest in
Bartsch’s estate as the assignee of a testamentary distributive share of that estate.
Appellant’s first argument is a gross distortion of Bartsch II. In affirming
summary judgment, we “conclude[d] that the trial court properly found there is no triable
issue of fact as to whether decedent was unaware of objector’s birth.” (Bartsch II, supra,
A135322, at p. *11.) But we did not end there. In the very next sentence of the opinion,
we stated: “It follows that the court properly concluded he is not entitled to a share of the
estate as an omitted child.” (Jbid., italics added). It is hard to conceive how “not entitled
to a share of the estate” can be read to mean anything other than that appellant has “no
beneficial interest” in the Estate. But even if the import of this legal rule somehow
escaped appellant’s comprehension, no reasonable attorney could misunderstand our
dismissal orders in 2015—which made clear that appellant lacks standing because he has
no interest in the Estate, citing to Bartsch IJ. It is concerning that appellant would offer
what seems to be a disingenuous interpretation of Bartsch IJ while completely ignoring
that our subsequent orders in Peltner v. Herterich, supra, A136646, and Herterich v.
Peltner, supra, A143565 refute it.
Appellant’s second argument simply rehashes arguments that have been
conclusively settled or rejected by this court. Bartsch II resolved that appellant is not an
intestate heir; he is an heir who was known to his father and was intentionally omitted
from his father’s will and therefore has no claim to the Estate. Peltner v. Herterich,
supra, A136646, and Herterich v. Peltner, supra, A143565 settled that appellant does not
11have standing based on a theory that Peltner committed fraud against him or deprived
him of the opportunity to contest the will. Once a legal issue has been decided on appeal,
it is not open to further debate. Appellant’s utter failure to analyze these orders in the
context of the law of the case falls short of counsel’s professional duty of candor and to
raise pertinent legal authorities. (See Kleveland, supra, 215 Cal.App.4th at p. 559 [“One
of an attorney’s duties is to employ only those means that are consistent with truth and
never to seek to mislead us ‘by an artifice or false statement of fact or law.’ (Bus. &
Prof. Code, § 6068, subd. (d).)”].)
Finally, appellant advances a new theory that he has obtained standing through an
assignment of testate distribution rights from a beneficiary of the Estate. Appellant cites
to his request for judicial notice of exhibits he filed with the court below, including an
exhibit that purports to be an assignment of interest to him. Appellant overlooks that
while we granted in part his request for judicial notice as to the existence of court
records, we denied his request to the extent it sought judicial notice as to the truth of any
matters stated therein—exactly what he seeks improperly to do here. (See Evid. Code,
§ 452, subd. (d); Simons, Cal. Evidence Manual (2019) § 7.12, pp. 599-601.) In any
event, this filing reveals that the assignment occurred after the notice of appeal was filed
herein. It is well established that a reviewing court may not give any consideration to
alleged facts that are outside of the record on appeal. (C/T Group/Equipment Financing,
Inc. v. Super DVD, Inc. (2004) 115 Cal.App.4th 537, 539, fn. 1.)
It is equally clear appellant has pursued the instant appeal for the improper
purpose of harassing and causing delay in the distribution of the Estate, which has now
been in probate for 10 years. Appellant has thoroughly, and unsuccessfully, litigated his
objections to the Estate for close to a decade and is now onto his sixth appeal. His siege
on the Estate has had deleterious consequences. Reportedly, some of the Estate’s elderly
beneficiaries have passed away, having never received their bequests. By one estimate,
more than one-sixth of the value of the Estate may have been depleted by attorney fees
12and costs driven from appellant’s barrage of litigation.* Appellant has now filed three
more appeals in this matter. In the court below, he has sought unsuccessfully to block the
payment of fees and costs by the Estate, to block the sale of real property by the Estate, to
remove the executor, and to stay the distribution of the Estate, among other failed
pursuits. It is all the more notable that he engages in this type of litigation when this
court has already concluded that appellant has no standing. One can only assume that he
is pursuing an aggressive litigation strategy for the improper purposes of delaying the
effect of the court’s judgments, wearing down Peltner and the beneficiaries of the Estate,
or depleting the Estate to the point that there is nothing left. Sanctions are warranted to
deter this improper behavior.
As to the amount of sanctions, Peltner’s counsel stated in his declaration that he
spent 17 hours preparing the motion to dismiss this appeal, billed at a rate of $350 per
hour. From this we calculate a total of $5,950. We conclude that amount is appropriate
as sanctions for appellant’s conduct in filing this frivolous appeal and advancing
frivolous arguments.
DISPOSITION
Having found appellant lacks standing to appeal the denial of his motion to set
aside the probate court’s December 2008 orders admitting Bartsch’s will to probate and
appointing Peltner as executor, we conclude this appeal must be dismissed.
As sanctions for bringing this frivolous appeal, appellant and his attorney Carleton
L. Briggs, jointly and severally, shall pay $5,950 to Peltner, in Peltner’s capacity as
executor. Sanctions shall be paid no later than 15 days after the date the remittitur is
issued.
8 In 2014 the Estate was valued at $3.2 million. The probate court approved
payment of attorney fees and costs through February 2012 in the amount of $173,058, a
further request for fees and costs through October 2016 has been submitted totaling
$309,833, and Peltner contends he has incurred $34,195 from this latest appeal alone (for
a total of $517,086 to date).
13Attomey Carleton L. Briggs and the clerk of this court are each ordered to forward
a copy of this opinion to the State Bar upon return of the remittitur. The clerk of this
court shall also notify attorney Carleton L. Briggs that this matter has been referred to the
State Bar. (Bus. & Prof. Code, §§ 6086.7, subd. (a), 6068, subd. (0)(3).)
14Sanchez, J.
We concur:
Margulies, Acting P. J.
Banke, J.
151783 Herterich v. Peltner
15EXHIBIT 2Court of Appeal. First Appellate District
Charles D. Johnson, Clerk/fxecutive Officer
Electronically FILED on 2/21/2019 by T. Nevils, Deputy Clerk
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION ONE
NORMAN BARTSCH HERTERICH,
Objector and Appellant,
vy.
ARNDT PELTNER, as Executor, etc.,
Defendant and Respondent.
NORMAN BARTSCH HERTERICH,
Objector and Appellant,
v.
ARNDT PELTNER, as Executor, etc.,
Defendant and Respondent.
NORMAN BARTSCH HERTERICH,
Objector and Appellant,
v.
ARNDT PELTNER, as Executor, etc.,
Defendant and Respondent.
BY THE COURT:
A155109
(San Francisco County
Super. Ct. No. PES-08-291846)
A155400
(San Francisco County
Super. Ct. No. PES-08-291846)
A156231
(San Francisco County
Super. Ct. No. PES-08-291846)
In light of our opinion in Herterich v. Peltner (Feb. 20, 2019, A151783
[nonpub. opn.]), the parties are ordered to submit letter briefs addressing whether
Herterich has standing to bring the three appeals that are currently pending before
this court: Herterich v. Peltner (A155109, app. pending), Herterich v. Peltner
(A155400, app. pending), and Herterich v. Peltner (A156231, app. pending).
Herterich’s standing as to the three appeals is to be addressed in a single brief notto exceed 15 pages. The parties’ briefs are due within 21 days from the issuance of
this order.
Dated: 02/21/2019 Margulies, J.EXHIBIT 3SETTLEMENT AGREEMENT AND RELEASE
In re: Estate of Hans Herbert Bartsch
San Francisco Superior Court, Case No. PES-08-291846
This Settlement Agreement and Release (the “Agreement”) is entered on February 25,
2019 (for reference purposes only) by and between NORMAN BARTSCH HERTERICH
(“Herterich”) and ARNDT PELTNER, Individually (““Peltner”) and as executor (“Executor”)
of the Estate of Hans Herbert Bartsch (the “Estate”), San Francisco Superior Court, Case No.
PES-08-291846 (the “Probate Case”) (each individually a “Party” and collectively the
“Parties”).
Recitals
A. WHEREAS, Hans Herbert Bartsch (“Bartsch”) executed a Will in January 2007 (the
“2007 Will”) naming Peltner as executor and a 14% residue beneficiary. Bartsch died on
October 25, 2008. By Order entered December 10, 2008 in the Probate Case, the 2007 Will wes
admitted to probate and Peltner was appointed as Executor of the Estate.
B. WHEREAS, on April 1, 2009, Herterich filed a Petition to Determine Distribution
Rights as a Pretermitted Heir (Petition #1) for determination of his rights as a pretermitted heir.
Petition #1 was resolved by judgment against Herterich, determining no right to inherit as a
pretermitted heir. Herterich filed several appeals related to Petition #1, which have all been
either dismissed or resolved against him.
C. WHEREAS, in or about August 2017, Herterich acquired by assignment from
beneficiary Peter Buhrmann a 1% residue gift under the 2007 Will (the “1% Buhrmann
Residue Gift’). Thereafter, as an assignee beneficiary, Herterich filed several additional
petitions including but not limited to:
1. Petition for Removal of Estate Representative, which was denied by the Court in
or about July 2018, and which has been appealed by Herterich;
2. Petition to Surcharge Executor, for Double Damages, For Punitive Damages and
For Attomey’s Fees, which was also denied by the Court in or about July 2018, and which has
been appealed by Herterich; and
Settioment Agreement and Release — Estate of Bartsoh (v.03.11.2019) Page lof6
(ponees7.1)3. Petition to Determine Distribution Rights to Invalidate Gift to Beneficiary
(Petition #2), claiming that Peltner is disqualified as a beneficiary under former Probate Code
section 21350, which Peltner denies; Petition #2 was set for trial in April 2019.
D. WHEREAS, Herterich filed a civil action, Herterich v. Peltner and Traeg, Case No.
CGC-12-523942 (the “Fraud Case"), against Peltner and his former Estate counsel, Alice
Brown Traeg, for fraud, concealment, intentional and negligent misrepresentation and punitive
damages, which was adjudicated in favor of defendants and against Herterich.
E. WHEREAS, several unbriefed appeals and a writ petition by Herterich are pending
before the Court of Appeal, and additional briefing has been requested by the Court of Appeal
regarding three of the pending appeals,
F. WHEREAS, the Parties desire to avoid further litigation, expense and delay, and to
obtein a fair and efficient compromise and resolution of all of Herterich’s claims and remaining
petitions, actions and appeals in the Probate Case (the “Dispute”), and the Parties have reached a
settlement herein subject to Court approval (to be sought forthwith).
NOW, THEREFORE, on the terms and conditions below and the Recitals above, the
Parties agree as follows:
Terms
1. Conditioned on Court Approval. This Agreement is expressly conditioned on, and
this Agreement is not effective unless and until, approval by the Court in the Probate Case
(‘Court Approval”). Upon full execution of this Agreement by the Parties and counsel, counsel
for Executor shall promptly file a petition for approval of this Agreement, and the Parties shall
cooperate and work together to obtain Court Approval.
2, Payment To Herterich. In consideration of settling the Dispute and Herterich’s
assignment of his 1% Buhrmann Residue Gift to Peltner, Herterich will be paid Eighty Thousand
Dollars ($80,000.00) as follows: (a) Sixty Thousand Dollars ($60,000.00) from the Estate (paid
by the Executor with Estate funds) for settling the Dispute; and (ii) Twenty Thousand Dollars
($20,000.00) from Peltner Individually for the assignment, The payments shall be made payable
to “Norman Herterich” and mailed to his counsel within five (5) business days after Court
Approval.
Agreement and Release — Estate of Bartsch (v.03.11.2019) Page 2 of 6
(ocoge 127.3)3. Dismissals. Herterich shall file dismissals with prejudice for all outstanding
petitions, actions and appeals including without limitation in the proceeding on Petition #2 and in
Court of Appeal case nos. A155109, A155400, A156231, A156317, and A156367 within five (5)
business days after Court Approval,
4. Herterich’s Assignment of 1% Buhrmann Residue Gift. Herterich hereby assigns
his entire 1% Buhrmann Residue Gift, which he acquired by assignment from Peter Buhrmann,
and all his right, title and interest in the Estate, to Peltner Individually, in the form attached
hereto as Exhibit A, to be signed and notarized by Herterich and the original thereof delivered to
counsel for Peltner within five (5) business days after Court Approval.
5, Herterich’s Acknowledgement of No Further Claims. Herterich agrees and
acknowledges that Herterich is no longer a beneficiary of the Estate; has no further right, title or
interest in or to the proceeds or any part of the Estate; is forever barred from making any claims
or objections or disputing any administration or disposition of the Estate; has no further rights to
pursue any litigation against the remaining beneficiaries or their predecessors, the Executor, the
Executor’s attorneys or their predecessors; and his acceptance of the consideration herein is a full
and complete settlement and accord and satisfaction of any right, title or interest that he may
have or had with regard to the Estate or any of its representatives, beneficiaries and agents.
6. Sanctions Waiver. Peltner as Executor hereby waives and releases the payment of
all sanctions ordered to be paid by Herterich and/or his counsel, Carleton Briggs, to Executor.
7, Mutual Releases.
a. Releases. Each Party, Herterich on the one hand and Peltner Individually and as
Executor on the other hand, for themselves and on behalf of his/its agents, employees, attorneys,
representatives, beneficiaries, assigns and successors (“Releasors”), as a material consideration
for the terms of this Agreement, does hereby and for all time and forever irrevocably release,
acquit, waive and forever discharge each other Party and his respective agents, employees,
attorneys, representatives, beneficiaries, assigns and successors (“Releasees”) from any and all
actions, applications, petitions, claims (including, but not limited to, claims for attorney’s and
expert's fees, costs, and sanctions), contests, damages, demands, losses, costs, or expenses, of
eny kind or nature, whether vested or contingent, suspected or not, known or unknown,
regardless of fault, currently existing or that hereafter can, shall, or may exist between the Parties
(the “Claims”, including but not limited to Claims arising out of or related to the facts set forth
Settlement Agreament and Release — Estate of Bartsch (v.03.11.2019) Page 3 of 6
(pocenua7.in the Recitals above, all petitions, pleadings, and motion papers filed in the Probate Case, the
Fraud Case, the Estate, and any and all transactions, occurrences, acts or omissions that could
have been alleged in the Probate Case or Fraud Case (the “Released Matters”). The Released
Matters do not include the rights and obligations created in this Agreement or as between Peltner
Individually and as Executor.
b. Mutual Waiver of Civil Code section 1542. The Parties each agres and expressly
waive the benefits of any statutory provision or common law rule that provides, in sum or
substance, that a release does not extend to claims that the party does not know or suspect to
exist, and in particular, but without limitation, the Parties expressly acknowledge that they are
familiar with and expressly waive the provisions of California Civil Code section 1542, which
reads:
A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS THAT
THE CREDITOR OR RELEASING PARTY DOES NOT KNOW OR
SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF
EXECUTING THE RELEASE AND THAT, IF KNOWN BY HIM OR
HER, WOULD HAVE MATERIALLY AFFECTED HIS OR HER
SETTLEMENT WITH THE DEBTOR OR RELEASED PARTY.
The Parties to this Agreement understand and acknowledge the significance and consequence of
this waiver of Civil Code section 1542.
Cj Bank fltinae—
BARTSCH HERTERICH ARNDT PELTNER, Individually and as Executor
8. Representations and Warranties. Each Party represents, warrants and
acknowledges as follows:
a. Each Party has not previousty transferred any right agreed to herein and has the
authority to sign and be bound by this Agreement;
b. Bach Party is responsible for their respective tax consequences of this Agreement,
and has been encouraged to consult with their respective accountant or other tax advisor with
respect to this Agreement, has had the opportunity to do so, and has either done so or chosen not
to do so on their own accord; and
Settlement Agreoment and Relenee — Estate of Bartach (v.03.11.2019) Page 4 of 6in the Recitals above, all petitions, pleadings, and motion papers filed in the Probate Case, the
Fraud Case, the Estate, and any and all transactions, occurrences, acts or omissions that could
have been alleged in the Probate Case or Fraud Case (the “Released Matters”). The Released
Matters do not include the rights and obligations created in this Agrcement or as between Peltner
Individually and as Executor.
b. Mutual Waiver of Civil Code section 1542. The Parties each agree and expressly
waive the benefits of any statutory provision or common law rule that provides, in sum or
substance, that a release does not extend to claims that the party does not know or suspect to
exist, and in particular, but without limitation, the Parties expressly acknowledge that they are
familiar with and expressly waive the provisions of California Civil Code section 1542, which
reads:
A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS THAT
THE CREDITOR OR RELEASING PARTY DOES NOT KNOW OR
SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF
EXECUTING THE RELEASE AND THAT, IF KNOWN BY HIM OR
HER, WOULD HAVE MATERIALLY AFFECTED HIS OR HER
SETTLEMENT WITH THE DEBTOR OR RELEASED PARTY.
The Parties to this Agreement understand and acknowledge the significance and consequence of
this waiver of Civil Code section 1542.
49
NORMAN BARTSCH HERTERICH ARNDT PELTNER, Individually and as Executor
8. Representations and Warranties. Each Party represents, warrants and
acknowledges as follows: :
a. Each Party has not previously transferred any right agreed to herein and has the
authority to sign and be bound by this Agreement;
b, Each Party is responsible for their respective tax consequences of this Agreement,
and has been encouraged to consult with their respective accountant or other tax advisor with
respect to this Agreement, has had the opportunity to do so, and has either done so or chosen not
to do so on their own accord; and
Settlement Agreement and Release — Estate of Barisch (v.03.11.2019) Page 4 of 6
(oone9187 3)¢. This Agreement supersedes any prior agreements oral or otherwise not contained
in this Agreement, and no Party is relying on any promises or representations not contained in
this Agreement..
9, Further Assurances. Each Party agrees to perform such further acts and covenants
to execute and deliver any and all further documents and instruments as may be reasonably
necessary or convenient to carry out the purposes of and transactions contemplated by this
Agreement.
10. Binding Agreement. This Agreement shall be binding upon and constitutes the
entire agreement between the Parties, and is for the benefit of the Parties and their respective
representatives, agents, attorneys, beneficiaries, heirs, successors and assigns.
11. Severability. Should any provision of this Agreement be held illegal, such illegality
shall not invalidate the whole of this Agreement. Instead, this Agreement shall be construed as if
it did not contain the illegal part, and the rights and obligations of the Parties shall be construed
and enforced accordingly.
12. Enforceability and Venue. Each Party acknowledges and agrees that, should any
dispute arise regarding this Agreement, the Agreement shall be specifically enforceable under
California Code of Civil Procedure section 664.6. Venue shall be in the City and County of San
Francisco, California in any action, petition or other proceeding to enforce, or for breach of, this
Agreement. For any action, petition or other proceeding to enforce or for breach of this
Agreement, the prevailing party or parties shall be entitled to, in addition to any other relief the
Court may award, reasonable litigation costs, expert witness fees and costs and sttorney’s fees
and costs incurred from the losing party or parties.
13. Miscellaneous.
a, This Agreement cannot be amended, altered, modified, waived or superseded,
in whole or in part, except by a writing so stating that is signed by the Party to be bound thereby.
b. Headings are for convenience only and are not part of the Agreement.
¢. This Agreement may be executed in any number of counterparts and via
facsimile, email or other electronic means, each of which shall be an original, but all of which
together shall constitute one instrument.
d. This Agreement shall be governed by the laws of the State of California.
Settlement Agreement and Release — Estate of Bartsch (v.03.11.2019) Page 5 of 6
(eooen1s72)IN WITNESS WHEREOF, the Parties sign this Agreement below:
Dated: March_!( 2019
Dated: March ____, 2019
APPROVED AS TO THE FORM:
Dated: March ll , 2019
Dated: March ___, 2019
Dated: March ___, 2019
NORMAN BARTSCH HERTERICH, Individually
ARNDT PELTNER, Individually and as Executor
of the Estate ‘of Hans Herbert Bartsch
LAW OFFICES OF CARLETON L. BRIGGS
Ce iI
Carleton L. Briggs
Attomey for NORMAN BARTSCH HERTERICH
LAW OFFICES OF THOMAS C. TAGLIARINI
Thomas C. Tagliarini
Attomey for Executor ARNDT PELTNER
SETO WOOD & SCHWEICKERT LLP
Steven N.H. Wood
Attomeys for ARNDT PELTNER, Individually
Settlement Agreement and Release — Estate of Bartsch (v.03.1 1.2019) Page 6 of 6IN WITNESS WHEREOF, the Parties sign this Agreement below:
Dated: March, 2019
NORMAN BARTSCH HERTERICH, Individually
o
Dated: March [/ 2019 Zk alk} :
ARNDT PECTIN
J ER. Individually and as Executor
of the Estate of Hans Herbert Bartsch
APPROVED AS TO THE FORM:
Dated: March, 2019 LAW OFFICES OF CARLETON L. BRIGGS
Carleton L. Briggs
Attorney for NORMAN BARTSCH HERTERICH
Dated: March, 2019 LAW OFFICES OF THOMAS C. TAGLIARINI
Thomas C, Tagliarini
Attorney for Executor ARNDT PELTNER
Dated: March 4 2019 SETO WOOD & SCHWEICKERT LLP
De Mbd
Steven NH. Wood
Atiomeys for ARNDT PELTNER, Individually
Settlement Agreement and Release » Estate of Bartsch (v.03. 1.2019) Page 6 of 6
oan aSTN WITNESS WHEREOF, the Parties sign this Agreement below:
Dated: March , 2019
Dated: March » 2019
APPROVED AS TO THE FORM:
Dated: March 52019
Dated: March _/1 , 2019 a
{
Dated: March , 2019
NORMAN BARTSCH HERTERICH, Individually
ARNDT PELTNER, Individually and as Executor
of the Estate of Hans Herbert Bartsch
LAW OFFICES OF CARLETON L. BRIGGS
Carleton L. Briggs
Attorney for NORMAN BARTSCH HERTERICH
Attorney” Executor ARNDT,PELTNER
\
SETO WOOD & SCHWEICKERT LLP
Steven N.H. Wood
Attorneys for ARNDT PELTNER, Individually
Settlenrent Agreement and Release ~ Estate of Bartsch (v.03.11.2019) Page 6 of 6ASSIGNMENT OF ESTATE INTEREST
Inve: Estate of Hans Herbert Bartsch
San Francisco Superior Court, Case No. PES-08-291846
Norman Bartsch Herterich (‘‘Assignor’) hereby makes this Assignment (the
“Assignment”) to Amdt Peltner, individually (“Assignee”) of his entire interest in the Estate of
Hans Herbert Bartsch (the “Estate”), San Francisco Superior Court, Cass No. PES-08-291846
(the “Probate Case”) as follows:
WHEREAS, the 2007 Will of Hans Herbert Bartsch (“Bartsch”) included a 1% residue
gift to Peter Buhrmann (the “1% Buhrmann Residue Gift’). Bartsch died on October 25, 2008.
By Order entered December 10, 2008 in the Probate Case, the 2007 Will was admitted to probate
and Assignee was appointed as Executor of the Estate.
WHEREAS, on August 2, 2018, Assignor acquired the 1% Buhrmann Residue Gift by
assignment from Buhrmann, which has an approximate value of $20,733.61 based on the
February 28, 2017 Amended Petition for Approval of Accounting filed in the Probate Case.
WHEREAS, by a Settlement Agreement and Release dated February 25, 2019 (the
“Settlement”), Assignor and Assignee (individually and as Executor) reached a settlement of all
claims between them, which included as part of the consideration an assignment of Assignor’s
entire interest in the Estate to Assignee, individually.
WHEREAS, the Settlement was conditioned on approval by the Court in the Probate
Case, which was obtained on March » 2019,
NOW, THEREFORE, in consideration of Twenty Thousand Dollars ($20,000.00) from -
Assignee, individually, receipt of which is hereby acknowledged:
1. Assignor hereby irrevocably assigns all right, title and interest in and to his 1%
Buhrmann Residue Gift, and all his right, title and interest in the Estate, to Assignee,
individually.
2. Assignor warrants that he has the right to make this Assignment; has good title to the
interests assigned herein; and has not sold or encumbered and will not sell or encumber any
rights assigned herein, nor take any action to impede Assignee’s ability to exercise any rights
related to those acquired herein or to realize payment of the full amount of the inheritance when
the assets of the Estate are distributed to the beneficiaries named in the 2007 Will.
Dated: March »2019
NORMAN BARTSCH HERTERICH
EXHIBIT A - ASSIGNMENT - Estate of Bartsch (v.03.11.2019) Page 1 of 2[acknowledgement on following page]
ACKNOWLEDGMENT
‘A notary public or other officer completing this certificate verifies only the identity of the
individual who signed the document to which the certificate is attached, and not the
truthfulness, accuracy, or validity of that document.
State
Preview
Co earianawn er YW ND = YN YN YN NR ND S| SB Be Be Be Be Be Se Se oranda DBNHHE SC DO DAA NH BF WH HK SO Thomas C. Tagli ini (State Bar #: 1004s OF THO! LAW OFFI MAS C. TAGLIARINI ELECTRONICALLY 2200 Powell Street, Suite 1050 FILED Em le, California 94608 Superior Court of Caiifornia, Felee! se ( | 19) a County of San Francisco ‘acsimu! ie; WU-F3¢ oO e-mail; Tom@Tagliarinilaw.com 03/13/2019 BY: ALISON AGBAY Attorney for Executor, ARNDT PELTNER Deputy Clerk SUPERIOR COURT FOR THE STATE OF CALIFORNIA SAN FRANCISCO COUNTY IN THE ESTATE OF HANS HERBERT Case No.: PES-08-291846 BARTSCH / DECLARATION OF THOMAS C. NORMAN HERTERICH TAGLIARINI IN SUPPORT OF PETITION Petitioner, FOR COURT APPROVAL OF PROPOSED SETTLEMENT ve DATE: 9:00 a.m. DATE: , 2019 ARNDT PELTNER, DEPT: 204 RESERVATION #: Respondent. / [ Probate Code § 9836 et seq.] DECLARATION OF THOMAS C. TAGLIARINI I, Thomas C. Tagliarini am an attorney at law duly authorized to practice law before all courts of the State of California. I am the attorney of record for Arndt Peltner as Executor of the Estate of Hans Herberj Bartsch. As such, I have personal knowledge of the following facts. As to those matters stated herein upon information and belief, I believe them to be true: 1 Attached hereto and marked as Exhibit 1 is a true and correct copy of the February 20, 2019 opinion filed by Court of Appeal filed in A151783 (appeal 7) affirming this Court’s ruling denying Herterich’s Petition to Set Aside Probate Rulings rendered in 2008 admitting the subject will to probate and PETITION FOR COURT APPROVAL OF PROPOSED SETTLEMENT 1oo wm ND NH YN designating Arndt Peltner as the duly nominated Executor of the Estate. 2. Attached hereto and marked as Exhibit 2 is a true and correct copy of the February 21, 2019 Order from the Court of Appeal demanding the parties, in light of the opinion it had filed the day before, to| file letter briefs within fifteen (15) days on the issue whether Herterich had standing to maintain pending appeals (A155109, A155400 and A156231.) 3. On or about February 22, 2019 I contacted the Clerk for Division 1 of the Court of Appeal t determine whether or not the Court of Appeal intended to exclude A156367 (appeal 11) from their order. The clerk advised me that for some reason unknown to her that appeal A156367 was not electronically linked) to the other three pending appeals. 4, Attached hereto and marked as Exhibit 3 is a true and correct copy of the Proposed Settlemen Agreement, 5. Herterich has notified the Court of Appeal of the Proposed Settlement and has requested | stay of the pending appellate matters pending this Court's determination of this Petition. The Court of Appeal has issued a stay of the pending appellate matters but only up to April 30, 2019. 6. I declare under penalty of perjury, under the laws of the State of California the foregoing is true and correct. [ could testify competently to the foregoing if called as a witness to dose... Executed this 13" day of March, 2019 in Emeryvittes Cal i PETITION FOR COURT APPROVAL OF PROPOSED SETTLEMENT 2EXHIBIT 1Filed 2/20/19 NOT TO BE PUBLISHED IN OFFICIAL REPORTS IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION ONE Estate of HANS HERBERT BARTSCH, Deceased. NORMAN BARTSCH HERTERICH, Objector and Appellant, v. ARNDT PELTNER, as Executor, etc., Defendant and Respondent. A151783 (San Francisco County Super. Ct. No. PES-082-91846) This is the sixth appeal by appellant Norman Bartsch Herterich involving the estate of his father, decedent Hans Herbert Bartsch (Estate). We previously upheld the probate court’s determination that appellant has no claim to the Estate as a pretermitted child. We affirmed the trial court’s summary judgment order dismissing a separate civil fraud action brought by appellant against Arndt Peltner, the executor of the Estate, and Peltner’s attorney, Alice Brown Traeg. We dismissed two other appeals after concluding appellant lacked standing because he has no interest in the Estate. Our orders made clear that dismissal was required under the law of the case and that we would not revisit our prior rulings. Undeterred, appellant moved to set aside orders entered by the probate court more than a decade ago. He now appeals from the denial of his motion. We conclude, once again, that appellant does not have standing to raise this appeal anddismiss it for lack of jurisdiction. We also order sanctions for pursuing this frivolous appeal in the amount of $5,950, payable to Peltner, in his capacity as executor.! FACTUAL AND PROCEDURAL BACKGROUND I. History of Litigation As we stated previously, “[t]he background to this case is well known to this court and the parties.” (Herterich v. Peltner (2018) 20 Cal.App.5th 1132, 1135 (Herterich).) This litigation concerns Bartsch’s will, which does not name appellant or designate him to receive any share of the Estate. We take judicial notice of our prior opinions and orders” and summarize the pertinent facts. Bartsch’s will was admitted to probate in December 2008. In April 2009, appellant filed a pretermission petition seeking to obtain the Estate under the theory that he is Bartsch’s son and had been unintentionally omitted from his father’s will. In December 2011, the probate court granted executor Peltner’s motion for summary judgment after finding that appellant was not a pretermitted heir and had been intentionally disinherited by Bartsch. Appellant filed a notice of appeal. While the appeal was pending, appellant filed a civil fraud action against Peltner and Traeg, alleging they committed fraud by filing a petition to administer the probate of the Estate that falsely asserted Bartsch had no children, and by failing to serve him with notice of the petition when they knew or should have known that appellant was decedent’s son and was entitled to notice. (See Herterich, supra, 20 Cal.App.Sth at | Appellant has since filed three more appeals in this matter. By separate order, we will order the parties to brief why these appeals should not be dismissed for lack of standing. 2 Estate of Bartsch (2011) 193 Cal.App.4th 885 (Bartsch 1), Estate of Bartsch (Jan. 30, 2014, A135322 [nonpub. opn.]) (Bartsch IN, Peltner v. Herterich (A136646, dism. Apr. 28, 2015), Herterich v. Peltner (A143565, dism. Apr. 28, 2015), Herterich, supra, 20 Cal.App.Sth 1132.p. 1136.) Such actions, appellant alleged, deprived him of the opportunity to object or to assert a claim against the Estate. In 2014, we affirmed the probate court’s ruling that appellant was not a pretermitted heir. We “conclude[d] that the trial court properly found there is no triable issue of fact as to whether decedent was unaware of objector’s birth,” observing “it stretches credulity to posit that after making approximately 228 monthly child support payments, decedent would have lost all awareness of objector’s birth or of his status as objector’s presumed father.” (Bartsch II, supra, A135322, at pp. *11-*12.) We accordingly held that “the court properly concluded he is not entitled to a share of the estate as an omitted child.” (Jd. at p. *11.) The following year, we dismissed two other appeals filed by appellant challenging the probate court’s orders approving payment of Peltner’s attorney fees and expenses, and approving the sale of two parcels of real property owned by the Estate. (Peltner v. Herterich, supra, A136646; Herterich v. Peltner, supra, A143565.) Because Bartsch II had conclusively established that appellant has no interest in the Estate, we concluded appellant lacked standing. Our orders noted Bartsch II is the law of the case. Peltner and Traeg successfully moved for summary judgment in the civil fraud action. (Herterich, supra, 20 Cal.App.Sth at p. 1137.) In March 2018, we affirmed both of the trial court’s judgments, holding that appellant’s claims were barred by the litigation privilege under Civil Code section 47, subdivision (b). (Herterich, at p. 1135.) II. The Present Appeal Appellant’s present appeal is from the probate court’s order denying his motion to set aside probate orders under Probate Code section 8007.3 On March 3, 2017, appellant filed a motion to set aside the probate court’s December 2008 orders admitting Bartsch’s 3 An order denying a motion to set aside an order admitting a will to probate is an appealable order. (Estate of Estrem (1940) 16 Cal.2d 563, 566.) All further undesignated statutory references are to the Probate Code. 3will to probate and appointing Peltner as executor. The motion asserted that extrinsic fraud was present in the procurement of the orders, statutory notice of the probate proceedings had not been satisfied, appellant was deprived of a fair hearing, and the orders were void. The probate court denied appellant’s motion. The court found that appellant had filed an untimely motion and had waived any notice defects by making a general appearance in the probate proceeding with his April 2009 pretermission petition.* The court also determined that the orders were not void because appellant has been given many opportunities to appear and contest the petition, as evidenced by his numerous challenges and appeals relating to this matter. Appellant filed a notice of appeal from the April 21, 2017 order. On August 2, 2017, Peltner filed a motion to dismiss the appeal on the basis that appellant has no standing because he has no beneficial interest in the Estate, relying in part on our prior dismissal orders. Peltner also requested that we impose monetary sanctions for the filing of a frivolous appeal. Appellant opposed the motion to dismiss, and asserted he had standing to appeal, in part, because he “has been assigned testate distribution rights.” He claimed Peltner’s motion to dismiss was frivolous, and asked that Peltner be sanctioned for bringing it. On September 1, 2017, we denied Peltner’s motion to dismiss and denied appellant’s motion for sanctions. We notified the parties that Peltner’s request for sanctions would be considered along with this appeal. 4 Under section 8270, subdivision (a) of the Probate Code, a petition to revoke the probate of a will must be brought within 120 days after the will is admitted to probate. Under Code of Civil Procedure section 473, subdivision (b), a motion to set aside an order must be brought within a reasonable time, but in no case more than six months after the order was entered. Rather than file a timely motion under either of the preceding statutes, appellant elected to file a pretermission petition instead. 4DISCUSSION I. The Appeal Must Be Dismissed We revisit the question of standing and conclude this appeal must be dismissed because appellant is not an “aggrieved party” within the meaning of Code of Civil Procedure section 902.5 Whether a party has standing to appeal is a question of law. (IBM Personal Pension Plan v. City and County of San Francisco (2005) 131 Cal.App.4th 1291, 1299.) An appeal may be taken on an appealable order or judgment, but only by those who have standing to appeal, which is jurisdictional. (Sabi v. Sterling (2010) 183 Cal.App.4th 916, 947.) “Standing to appeal is ‘jurisdictional and therefore cannot be waived.’ ” (Marsh v. Mountain Zephyr, Inc. (1996) 43 Cal.App.4th 289, 295.) If a party has no standing to appeal, this court has no jurisdiction to entertain the appeal and must dismiss. “Not every party has standing to appeal every appealable order. Although standing to appeal is construed liberally, and doubts are resolved in its favor, only a person aggrieved by a decision may appeal.” (Jn re K.C. (2011) 52 Cal.4th 231, 236.) “One is considered ‘aggrieved’ whose rights or interests are injuriously affected by the judgment. [Citations.] Appellant’s interest ‘ “must be immediate, pecuniary, and substantial and not nominal or a remote consequence of the judgment.” ’” (County of Alameda v. Carleson (1971) 5 Cal.3d 730, 737.) In probate matters, standing to appeal requires that a party “hav[e] an interest recognized by law in the subject matter of the judgment, which interest is injuriously affected by the judgment... .” (Estate of Colton (1912) 164 Cal. 1, 5.) As we previously held when we dismissed appellant’s two prior appeals, Bartsch II conclusively determined that appellant has no interest in the Estate and therefore lacks 5 Code of Civil Procedure section 902 provides: “Any party aggrieved may appeal in the cases prescribed in this title. A party appealing is known as an appellant, and an adverse party as a respondent.”standing to prosecute an appeal. Appellant offers no explanation why the law of the case should not apply to foreclose his latest appeal. Unlike res judicata and collateral estoppel, both of which arise after entry of final judgment in one lawsuit and the commencement of another suit, the law of the case doctrine operates within the proceedings of a single lawsuit. “ ‘Under the law of the case doctrine, when an appellate court “ ‘states in its opinion a principle or rule of law necessary to the decision, that principle or rule becomes the law of the case and must be adhered to throughout [the case’s] subsequent progress, both in the lower court and upon subsequent appeal ....’” [Citation.] Absent an applicable exception, the doctrine “requir[es] both trial and appellate courts to follow the rules laid down upon a former appeal whether such rules are right or wrong.” [Citation.] As its name suggests, the doctrine applies only to an appellate court’s decision on a question of law; it does not apply to questions of fact.’ ” (Investors Equity Life Holding Co. v. Schmidt (2015) 233 Cal.App.4th 1363, 1377.) Law of the case may apply even where the appeal is from a decision “short of a full trial, including a judgment on a demurrer, a nonsuit order or [other] motion.” (Hotels Nevada, LLC v. L.A. Pacific Center, Inc. (2012) 203 Cal.App.4th 336, 356.) Appellant’s standing has been an issue from the outset of our involvement in this matter. In Bartsch I, supra, 193 Cal.App.4th 885, we considered whether appellant had standing to appeal an interim award of attorney fees and costs incurred by Peltner. At that stage of the litigation, the probate court had not yet ruled on appellant’s pretermission petition. We requested supplemental briefing concerning appellant’s standing to appeal the challenged interim orders. (Jd. at pp. 889-891.) We concluded that he had standing to appeal because, were he to prevail in the underlying action, the award of attorney fees would have placed him “at a financial disadvantage by diminishing the estate.” (Jd. at p. 891.) We also considered the fact that he had been served with notice of the petition for the award of interim attorney fees. (Jbid.) 6Subsequently, in Bartsch II, supra, A135322, we affirmed the probate court’s determination that appellant was not a pretermitted heir. We held that “the court properly concluded he is not entitled to a share of the estate as an omitted child.” (/d. at p. *12, italics added.) This statement was a principle or rule of law necessary to our decision affirming the lower court’s summary judgment ruling. This issue was finally determined over four years ago. When we dismissed appellant’s appeals in 2015, Peltner v. Herterich, supra, 136646, and Herterich v. Peltner, supra, A143565, we explained that appellant’s lack of interest in the Estate was fatal to his appeals. Having no interest in the Estate, appellant cannot be aggrieved by the lower court’s orders approving matters involving the Estate’s administration. We noted that Bartsch II is the law of the case and declined appellant’s invitation to revisit it. Finally, we concluded in Herterich that appellant’s “claims for damages in [his civil fraud action] are based entirely on representations made by defendants in connection with the probate proceedings and therefore his claims are barred by the litigation privilege under Civil Code section 47, subdivision (b).” (Herterich, supra, 20 Cal.App.Sth at p. 1135.) This rule of law was central to our opinion affirming the grant of summary judgment in favor of Peltner and Traeg, and it, too, is law of the case. Taken together, these points of law are determinative that appellant is not an “aggrieved party” within the meaning of Code of Civil Procedure section 902. Because he has no cognizable interest in the Estate and has suffered no legal injury from the filing of the probate petition and the related judicial proceedings, appellant has no standing to appeal the probate court’s order denying his motion to set aside probate orders that were entered more than 10 years ago.° 6 It is not altogether clear why, following Bartsch II and our subsequent orders dismissing appellant’s appeals, appellant’s motions and petitions are still being entertained by the probate court. Whether appellant has since acquired an interest in the 7“Like res judicata, the doctrine of the law of the case serves to promote finality of litigation by preventing a party from relitigating questions previously decided by a reviewing court.” (George Arakelian Farms, Inc. v. Agricultural Labor Relations Bd. (1989) 49 Cal.3d 1279, 1291.) The time for appellant to litigate points of law that have been conclusively resolved by this court has long since passed. II. Motion for Sanctions is Granted As noted above, Peltner moved for sanctions against appellant for filing a frivolous appeal. Appellant opposed the motion. Although we denied Peltner’s motion to dismiss, we notified the parties that the request for sanctions would be considered in conjunction with this appeal. (Cal. Rules of Court, rule 8.276(c).) This portion of our opinion constitutes the written statement of reasons required for imposition of sanctions against appellant. (See Jn re Marriage of Flaherty (1982) 31 Cal.3d 637, 654 (Flaherty).)' A. Legal Standards Code of Civil Procedure section 907 provides: “When it appears to the reviewing court that the appeal was frivolous or taken solely for delay, it may add to the costs on appeal such damages as may be just.” Sanctions may be imposed when an appeal is prosecuted for an improper motive, such as to harass the respondent or delay finality, or when the appeal indisputably has no merit—when any reasonable attorney would agree that the appeal is totally and completely without merit. (Kleveland v. Siegel & Wolensky, Estate through an “assignment of inheritance expectancy,” as he now contends, is not properly before the court. The question of appellant’s standing based on a purported assignment of testate distribution rights should be determined by the probate court in the first instance. 7 Flaherty also requires a party to be afforded a hearing prior to imposition of sanctions. (31 Cal.3d at p. 654.) Appellant was given notice that the court was contemplating the imposition of sanctions but waived oral argument. 8LLP (2013) 215 Cal.App.4th 534, 556 (Kleveland); see Cal. Rules of Court, rule 8.276(a)(1).) In Flaherty, the Supreme Court explained the rationale for the imposition of sanctions against a party by a reviewing court: “An appeal taken for an improper motive represents a time-consuming and disruptive use of the judicial process, Similarly, an appeal taken despite the fact that no reasonable attorney could have thought it meritorious ties up judicial resources and diverts attention from the already burdensome volume of work at the appellate courts.” (Flaherty, supra, 31 Cal.3d at p. 650.) “In determining whether an appeal indisputably has no merit, California cases have applied both subjective and objective standards. The subjective standard looks to the motives of the appealing party and his or her attorney, while the objective standard looks at the merits of the appeal from a reasonable person’s perspective.” (Kleveland, supra, 215 Cal.App.4th at p. 556.) Whether the party or attorney acted in an honest belief there were grounds for appeal is irrelevant “if any reasonable person would agree the grounds for appeal were totally and completely devoid of merit.” (Jd. at pp. 556- 557.) The objective and subjective standards “are often used together, with one providing evidence of the other. Thus, the total lack of merit of an appeal is viewed as evidence that appellant must have intended it only for delay.” (Flaherty, supra, 31 Cal.3d at p. 649.) The determination whether an appeal is frivolous should be approached with caution. Courts recognize that counsel and their clients have a right to present issues that are arguably correct, even if it is extremely unlikely that they will prevail on appeal. (Flaherty, supra, 31 Cal.3d at p. 650.) “An appeal that is simply without merit is not by definition frivolous and should not incur sanctions.” (Jbid., italics omitted.)B. Analysis We begin with the obvious ground for imposition of sanctions—this appeal is patently frivolous. Bartsch IJ settled the question that appellant was intentionally disinherited and has no interest in the Estate. Appellant evidently ignored our opinion and proceeded to challenge the probate court’s orders approving payment of Peltner’s attorney fees and expenses, and approving the sale of two parcels of real property owned by the Estate. In dismissing his appeals from these orders in 2015, we could not have been clearer that Bartsch II is the law of the case and appellant’s lack of interest in the Estate deprived him of standing. (Peltner v. Herterich, supra, A136646; Herterich v. Peltner, supra, A143565.) We also rejected appellant’s contention that he has standing based on his separate civil fraud action against Peltner and Traeg. Appellant argued that if he prevailed in the fraud action, the orders admitting the will to probate must be set aside and he will have an opportunity to contest the will. We concluded that the civil fraud action did not accord him standing, explaining that appellant suffered no prejudice and was not deprived of the opportunity to challenge the will. After all, appellant intervened in the probate proceedings within four months of their commencement and has vigorously contested and objected to the administration of the Estate over the past (now) nine years. It is the law of the case that appellant lacks standing to contest orders from the probate court, and yet appellant filed a motion to set aside the probate court’s 2008 orders admitting the will to probate and appointing Peltner as executor, and then filed the instant appeal from the denial of his motion. No reasonable attorney could possibly conclude that appellant has standing to challenge the probate court’s 2008 orders—particularly on grounds we rejected as the basis for his standing argument in 2015. We conclude it was objectively frivolous for appellant to file the current appeal. We also find appellant’s briefing on the question of standing to be devoid of any merit. In opposing Peltner’s motion to dismiss the pending appeal, appellant advances 10three arguments: (1) “[T]he appeal in [Bartsch IN] did not decide that [appellant] has ‘no beneficial interest’ in Bartsch’s estate; that appeal merely decided that Bartsch was aware when he signed his will that Herterich was Bartsch’s child, and Herterich therefore is not a pretermitted child” (italics in original); (2) appellant has an interest in the subject of the set-aside motion and is aggrieved by the order denying it because as “intestate heir,” appellant would inherit Bartsch’s estate and be given priority for appointment as administrator if the probate orders had been set aside; and (3) appellant has an interest in Bartsch’s estate as the assignee of a testamentary distributive share of that estate. Appellant’s first argument is a gross distortion of Bartsch II. In affirming summary judgment, we “conclude[d] that the trial court properly found there is no triable issue of fact as to whether decedent was unaware of objector’s birth.” (Bartsch II, supra, A135322, at p. *11.) But we did not end there. In the very next sentence of the opinion, we stated: “It follows that the court properly concluded he is not entitled to a share of the estate as an omitted child.” (Jbid., italics added). It is hard to conceive how “not entitled to a share of the estate” can be read to mean anything other than that appellant has “no beneficial interest” in the Estate. But even if the import of this legal rule somehow escaped appellant’s comprehension, no reasonable attorney could misunderstand our dismissal orders in 2015—which made clear that appellant lacks standing because he has no interest in the Estate, citing to Bartsch IJ. It is concerning that appellant would offer what seems to be a disingenuous interpretation of Bartsch IJ while completely ignoring that our subsequent orders in Peltner v. Herterich, supra, A136646, and Herterich v. Peltner, supra, A143565 refute it. Appellant’s second argument simply rehashes arguments that have been conclusively settled or rejected by this court. Bartsch II resolved that appellant is not an intestate heir; he is an heir who was known to his father and was intentionally omitted from his father’s will and therefore has no claim to the Estate. Peltner v. Herterich, supra, A136646, and Herterich v. Peltner, supra, A143565 settled that appellant does not 11have standing based on a theory that Peltner committed fraud against him or deprived him of the opportunity to contest the will. Once a legal issue has been decided on appeal, it is not open to further debate. Appellant’s utter failure to analyze these orders in the context of the law of the case falls short of counsel’s professional duty of candor and to raise pertinent legal authorities. (See Kleveland, supra, 215 Cal.App.4th at p. 559 [“One of an attorney’s duties is to employ only those means that are consistent with truth and never to seek to mislead us ‘by an artifice or false statement of fact or law.’ (Bus. & Prof. Code, § 6068, subd. (d).)”].) Finally, appellant advances a new theory that he has obtained standing through an assignment of testate distribution rights from a beneficiary of the Estate. Appellant cites to his request for judicial notice of exhibits he filed with the court below, including an exhibit that purports to be an assignment of interest to him. Appellant overlooks that while we granted in part his request for judicial notice as to the existence of court records, we denied his request to the extent it sought judicial notice as to the truth of any matters stated therein—exactly what he seeks improperly to do here. (See Evid. Code, § 452, subd. (d); Simons, Cal. Evidence Manual (2019) § 7.12, pp. 599-601.) In any event, this filing reveals that the assignment occurred after the notice of appeal was filed herein. It is well established that a reviewing court may not give any consideration to alleged facts that are outside of the record on appeal. (C/T Group/Equipment Financing, Inc. v. Super DVD, Inc. (2004) 115 Cal.App.4th 537, 539, fn. 1.) It is equally clear appellant has pursued the instant appeal for the improper purpose of harassing and causing delay in the distribution of the Estate, which has now been in probate for 10 years. Appellant has thoroughly, and unsuccessfully, litigated his objections to the Estate for close to a decade and is now onto his sixth appeal. His siege on the Estate has had deleterious consequences. Reportedly, some of the Estate’s elderly beneficiaries have passed away, having never received their bequests. By one estimate, more than one-sixth of the value of the Estate may have been depleted by attorney fees 12and costs driven from appellant’s barrage of litigation.* Appellant has now filed three more appeals in this matter. In the court below, he has sought unsuccessfully to block the payment of fees and costs by the Estate, to block the sale of real property by the Estate, to remove the executor, and to stay the distribution of the Estate, among other failed pursuits. It is all the more notable that he engages in this type of litigation when this court has already concluded that appellant has no standing. One can only assume that he is pursuing an aggressive litigation strategy for the improper purposes of delaying the effect of the court’s judgments, wearing down Peltner and the beneficiaries of the Estate, or depleting the Estate to the point that there is nothing left. Sanctions are warranted to deter this improper behavior. As to the amount of sanctions, Peltner’s counsel stated in his declaration that he spent 17 hours preparing the motion to dismiss this appeal, billed at a rate of $350 per hour. From this we calculate a total of $5,950. We conclude that amount is appropriate as sanctions for appellant’s conduct in filing this frivolous appeal and advancing frivolous arguments. DISPOSITION Having found appellant lacks standing to appeal the denial of his motion to set aside the probate court’s December 2008 orders admitting Bartsch’s will to probate and appointing Peltner as executor, we conclude this appeal must be dismissed. As sanctions for bringing this frivolous appeal, appellant and his attorney Carleton L. Briggs, jointly and severally, shall pay $5,950 to Peltner, in Peltner’s capacity as executor. Sanctions shall be paid no later than 15 days after the date the remittitur is issued. 8 In 2014 the Estate was valued at $3.2 million. The probate court approved payment of attorney fees and costs through February 2012 in the amount of $173,058, a further request for fees and costs through October 2016 has been submitted totaling $309,833, and Peltner contends he has incurred $34,195 from this latest appeal alone (for a total of $517,086 to date). 13Attomey Carleton L. Briggs and the clerk of this court are each ordered to forward a copy of this opinion to the State Bar upon return of the remittitur. The clerk of this court shall also notify attorney Carleton L. Briggs that this matter has been referred to the State Bar. (Bus. & Prof. Code, §§ 6086.7, subd. (a), 6068, subd. (0)(3).) 14Sanchez, J. We concur: Margulies, Acting P. J. Banke, J. 151783 Herterich v. Peltner 15EXHIBIT 2Court of Appeal. First Appellate District Charles D. Johnson, Clerk/fxecutive Officer Electronically FILED on 2/21/2019 by T. Nevils, Deputy Clerk IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION ONE NORMAN BARTSCH HERTERICH, Objector and Appellant, vy. ARNDT PELTNER, as Executor, etc., Defendant and Respondent. NORMAN BARTSCH HERTERICH, Objector and Appellant, v. ARNDT PELTNER, as Executor, etc., Defendant and Respondent. NORMAN BARTSCH HERTERICH, Objector and Appellant, v. ARNDT PELTNER, as Executor, etc., Defendant and Respondent. BY THE COURT: A155109 (San Francisco County Super. Ct. No. PES-08-291846) A155400 (San Francisco County Super. Ct. No. PES-08-291846) A156231 (San Francisco County Super. Ct. No. PES-08-291846) In light of our opinion in Herterich v. Peltner (Feb. 20, 2019, A151783 [nonpub. opn.]), the parties are ordered to submit letter briefs addressing whether Herterich has standing to bring the three appeals that are currently pending before this court: Herterich v. Peltner (A155109, app. pending), Herterich v. Peltner (A155400, app. pending), and Herterich v. Peltner (A156231, app. pending). Herterich’s standing as to the three appeals is to be addressed in a single brief notto exceed 15 pages. The parties’ briefs are due within 21 days from the issuance of this order. Dated: 02/21/2019 Margulies, J.EXHIBIT 3SETTLEMENT AGREEMENT AND RELEASE In re: Estate of Hans Herbert Bartsch San Francisco Superior Court, Case No. PES-08-291846 This Settlement Agreement and Release (the “Agreement”) is entered on February 25, 2019 (for reference purposes only) by and between NORMAN BARTSCH HERTERICH (“Herterich”) and ARNDT PELTNER, Individually (““Peltner”) and as executor (“Executor”) of the Estate of Hans Herbert Bartsch (the “Estate”), San Francisco Superior Court, Case No. PES-08-291846 (the “Probate Case”) (each individually a “Party” and collectively the “Parties”). Recitals A. WHEREAS, Hans Herbert Bartsch (“Bartsch”) executed a Will in January 2007 (the “2007 Will”) naming Peltner as executor and a 14% residue beneficiary. Bartsch died on October 25, 2008. By Order entered December 10, 2008 in the Probate Case, the 2007 Will wes admitted to probate and Peltner was appointed as Executor of the Estate. B. WHEREAS, on April 1, 2009, Herterich filed a Petition to Determine Distribution Rights as a Pretermitted Heir (Petition #1) for determination of his rights as a pretermitted heir. Petition #1 was resolved by judgment against Herterich, determining no right to inherit as a pretermitted heir. Herterich filed several appeals related to Petition #1, which have all been either dismissed or resolved against him. C. WHEREAS, in or about August 2017, Herterich acquired by assignment from beneficiary Peter Buhrmann a 1% residue gift under the 2007 Will (the “1% Buhrmann Residue Gift’). Thereafter, as an assignee beneficiary, Herterich filed several additional petitions including but not limited to: 1. Petition for Removal of Estate Representative, which was denied by the Court in or about July 2018, and which has been appealed by Herterich; 2. Petition to Surcharge Executor, for Double Damages, For Punitive Damages and For Attomey’s Fees, which was also denied by the Court in or about July 2018, and which has been appealed by Herterich; and Settioment Agreement and Release — Estate of Bartsoh (v.03.11.2019) Page lof6 (ponees7.1)3. Petition to Determine Distribution Rights to Invalidate Gift to Beneficiary (Petition #2), claiming that Peltner is disqualified as a beneficiary under former Probate Code section 21350, which Peltner denies; Petition #2 was set for trial in April 2019. D. WHEREAS, Herterich filed a civil action, Herterich v. Peltner and Traeg, Case No. CGC-12-523942 (the “Fraud Case"), against Peltner and his former Estate counsel, Alice Brown Traeg, for fraud, concealment, intentional and negligent misrepresentation and punitive damages, which was adjudicated in favor of defendants and against Herterich. E. WHEREAS, several unbriefed appeals and a writ petition by Herterich are pending before the Court of Appeal, and additional briefing has been requested by the Court of Appeal regarding three of the pending appeals, F. WHEREAS, the Parties desire to avoid further litigation, expense and delay, and to obtein a fair and efficient compromise and resolution of all of Herterich’s claims and remaining petitions, actions and appeals in the Probate Case (the “Dispute”), and the Parties have reached a settlement herein subject to Court approval (to be sought forthwith). NOW, THEREFORE, on the terms and conditions below and the Recitals above, the Parties agree as follows: Terms 1. Conditioned on Court Approval. This Agreement is expressly conditioned on, and this Agreement is not effective unless and until, approval by the Court in the Probate Case (‘Court Approval”). Upon full execution of this Agreement by the Parties and counsel, counsel for Executor shall promptly file a petition for approval of this Agreement, and the Parties shall cooperate and work together to obtain Court Approval. 2, Payment To Herterich. In consideration of settling the Dispute and Herterich’s assignment of his 1% Buhrmann Residue Gift to Peltner, Herterich will be paid Eighty Thousand Dollars ($80,000.00) as follows: (a) Sixty Thousand Dollars ($60,000.00) from the Estate (paid by the Executor with Estate funds) for settling the Dispute; and (ii) Twenty Thousand Dollars ($20,000.00) from Peltner Individually for the assignment, The payments shall be made payable to “Norman Herterich” and mailed to his counsel within five (5) business days after Court Approval. Agreement and Release — Estate of Bartsch (v.03.11.2019) Page 2 of 6 (ocoge 127.3)3. Dismissals. Herterich shall file dismissals with prejudice for all outstanding petitions, actions and appeals including without limitation in the proceeding on Petition #2 and in Court of Appeal case nos. A155109, A155400, A156231, A156317, and A156367 within five (5) business days after Court Approval, 4. Herterich’s Assignment of 1% Buhrmann Residue Gift. Herterich hereby assigns his entire 1% Buhrmann Residue Gift, which he acquired by assignment from Peter Buhrmann, and all his right, title and interest in the Estate, to Peltner Individually, in the form attached hereto as Exhibit A, to be signed and notarized by Herterich and the original thereof delivered to counsel for Peltner within five (5) business days after Court Approval. 5, Herterich’s Acknowledgement of No Further Claims. Herterich agrees and acknowledges that Herterich is no longer a beneficiary of the Estate; has no further right, title or interest in or to the proceeds or any part of the Estate; is forever barred from making any claims or objections or disputing any administration or disposition of the Estate; has no further rights to pursue any litigation against the remaining beneficiaries or their predecessors, the Executor, the Executor’s attorneys or their predecessors; and his acceptance of the consideration herein is a full and complete settlement and accord and satisfaction of any right, title or interest that he may have or had with regard to the Estate or any of its representatives, beneficiaries and agents. 6. Sanctions Waiver. Peltner as Executor hereby waives and releases the payment of all sanctions ordered to be paid by Herterich and/or his counsel, Carleton Briggs, to Executor. 7, Mutual Releases. a. Releases. Each Party, Herterich on the one hand and Peltner Individually and as Executor on the other hand, for themselves and on behalf of his/its agents, employees, attorneys, representatives, beneficiaries, assigns and successors (“Releasors”), as a material consideration for the terms of this Agreement, does hereby and for all time and forever irrevocably release, acquit, waive and forever discharge each other Party and his respective agents, employees, attorneys, representatives, beneficiaries, assigns and successors (“Releasees”) from any and all actions, applications, petitions, claims (including, but not limited to, claims for attorney’s and expert's fees, costs, and sanctions), contests, damages, demands, losses, costs, or expenses, of eny kind or nature, whether vested or contingent, suspected or not, known or unknown, regardless of fault, currently existing or that hereafter can, shall, or may exist between the Parties (the “Claims”, including but not limited to Claims arising out of or related to the facts set forth Settlement Agreament and Release — Estate of Bartsch (v.03.11.2019) Page 3 of 6 (pocenua7.in the Recitals above, all petitions, pleadings, and motion papers filed in the Probate Case, the Fraud Case, the Estate, and any and all transactions, occurrences, acts or omissions that could have been alleged in the Probate Case or Fraud Case (the “Released Matters”). The Released Matters do not include the rights and obligations created in this Agreement or as between Peltner Individually and as Executor. b. Mutual Waiver of Civil Code section 1542. The Parties each agres and expressly waive the benefits of any statutory provision or common law rule that provides, in sum or substance, that a release does not extend to claims that the party does not know or suspect to exist, and in particular, but without limitation, the Parties expressly acknowledge that they are familiar with and expressly waive the provisions of California Civil Code section 1542, which reads: A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS THAT THE CREDITOR OR RELEASING PARTY DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE AND THAT, IF KNOWN BY HIM OR HER, WOULD HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR OR RELEASED PARTY. The Parties to this Agreement understand and acknowledge the significance and consequence of this waiver of Civil Code section 1542. Cj Bank fltinae— BARTSCH HERTERICH ARNDT PELTNER, Individually and as Executor 8. Representations and Warranties. Each Party represents, warrants and acknowledges as follows: a. Each Party has not previousty transferred any right agreed to herein and has the authority to sign and be bound by this Agreement; b. Bach Party is responsible for their respective tax consequences of this Agreement, and has been encouraged to consult with their respective accountant or other tax advisor with respect to this Agreement, has had the opportunity to do so, and has either done so or chosen not to do so on their own accord; and Settlement Agreoment and Relenee — Estate of Bartach (v.03.11.2019) Page 4 of 6in the Recitals above, all petitions, pleadings, and motion papers filed in the Probate Case, the Fraud Case, the Estate, and any and all transactions, occurrences, acts or omissions that could have been alleged in the Probate Case or Fraud Case (the “Released Matters”). The Released Matters do not include the rights and obligations created in this Agrcement or as between Peltner Individually and as Executor. b. Mutual Waiver of Civil Code section 1542. The Parties each agree and expressly waive the benefits of any statutory provision or common law rule that provides, in sum or substance, that a release does not extend to claims that the party does not know or suspect to exist, and in particular, but without limitation, the Parties expressly acknowledge that they are familiar with and expressly waive the provisions of California Civil Code section 1542, which reads: A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS THAT THE CREDITOR OR RELEASING PARTY DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE AND THAT, IF KNOWN BY HIM OR HER, WOULD HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR OR RELEASED PARTY. The Parties to this Agreement understand and acknowledge the significance and consequence of this waiver of Civil Code section 1542. 49 NORMAN BARTSCH HERTERICH ARNDT PELTNER, Individually and as Executor 8. Representations and Warranties. Each Party represents, warrants and acknowledges as follows: : a. Each Party has not previously transferred any right agreed to herein and has the authority to sign and be bound by this Agreement; b, Each Party is responsible for their respective tax consequences of this Agreement, and has been encouraged to consult with their respective accountant or other tax advisor with respect to this Agreement, has had the opportunity to do so, and has either done so or chosen not to do so on their own accord; and Settlement Agreement and Release — Estate of Barisch (v.03.11.2019) Page 4 of 6 (oone9187 3)¢. This Agreement supersedes any prior agreements oral or otherwise not contained in this Agreement, and no Party is relying on any promises or representations not contained in this Agreement.. 9, Further Assurances. Each Party agrees to perform such further acts and covenants to execute and deliver any and all further documents and instruments as may be reasonably necessary or convenient to carry out the purposes of and transactions contemplated by this Agreement. 10. Binding Agreement. This Agreement shall be binding upon and constitutes the entire agreement between the Parties, and is for the benefit of the Parties and their respective representatives, agents, attorneys, beneficiaries, heirs, successors and assigns. 11. Severability. Should any provision of this Agreement be held illegal, such illegality shall not invalidate the whole of this Agreement. Instead, this Agreement shall be construed as if it did not contain the illegal part, and the rights and obligations of the Parties shall be construed and enforced accordingly. 12. Enforceability and Venue. Each Party acknowledges and agrees that, should any dispute arise regarding this Agreement, the Agreement shall be specifically enforceable under California Code of Civil Procedure section 664.6. Venue shall be in the City and County of San Francisco, California in any action, petition or other proceeding to enforce, or for breach of, this Agreement. For any action, petition or other proceeding to enforce or for breach of this Agreement, the prevailing party or parties shall be entitled to, in addition to any other relief the Court may award, reasonable litigation costs, expert witness fees and costs and sttorney’s fees and costs incurred from the losing party or parties. 13. Miscellaneous. a, This Agreement cannot be amended, altered, modified, waived or superseded, in whole or in part, except by a writing so stating that is signed by the Party to be bound thereby. b. Headings are for convenience only and are not part of the Agreement. ¢. This Agreement may be executed in any number of counterparts and via facsimile, email or other electronic means, each of which shall be an original, but all of which together shall constitute one instrument. d. This Agreement shall be governed by the laws of the State of California. Settlement Agreement and Release — Estate of Bartsch (v.03.11.2019) Page 5 of 6 (eooen1s72)IN WITNESS WHEREOF, the Parties sign this Agreement below: Dated: March_!( 2019 Dated: March ____, 2019 APPROVED AS TO THE FORM: Dated: March ll , 2019 Dated: March ___, 2019 Dated: March ___, 2019 NORMAN BARTSCH HERTERICH, Individually ARNDT PELTNER, Individually and as Executor of the Estate ‘of Hans Herbert Bartsch LAW OFFICES OF CARLETON L. BRIGGS Ce iI Carleton L. Briggs Attomey for NORMAN BARTSCH HERTERICH LAW OFFICES OF THOMAS C. TAGLIARINI Thomas C. Tagliarini Attomey for Executor ARNDT PELTNER SETO WOOD & SCHWEICKERT LLP Steven N.H. Wood Attomeys for ARNDT PELTNER, Individually Settlement Agreement and Release — Estate of Bartsch (v.03.1 1.2019) Page 6 of 6IN WITNESS WHEREOF, the Parties sign this Agreement below: Dated: March, 2019 NORMAN BARTSCH HERTERICH, Individually o Dated: March [/ 2019 Zk alk} : ARNDT PECTIN J ER. Individually and as Executor of the Estate of Hans Herbert Bartsch APPROVED AS TO THE FORM: Dated: March, 2019 LAW OFFICES OF CARLETON L. BRIGGS Carleton L. Briggs Attorney for NORMAN BARTSCH HERTERICH Dated: March, 2019 LAW OFFICES OF THOMAS C. TAGLIARINI Thomas C, Tagliarini Attorney for Executor ARNDT PELTNER Dated: March 4 2019 SETO WOOD & SCHWEICKERT LLP De Mbd Steven NH. Wood Atiomeys for ARNDT PELTNER, Individually Settlement Agreement and Release » Estate of Bartsch (v.03. 1.2019) Page 6 of 6 oan aSTN WITNESS WHEREOF, the Parties sign this Agreement below: Dated: March , 2019 Dated: March » 2019 APPROVED AS TO THE FORM: Dated: March 52019 Dated: March _/1 , 2019 a { Dated: March , 2019 NORMAN BARTSCH HERTERICH, Individually ARNDT PELTNER, Individually and as Executor of the Estate of Hans Herbert Bartsch LAW OFFICES OF CARLETON L. BRIGGS Carleton L. Briggs Attorney for NORMAN BARTSCH HERTERICH Attorney” Executor ARNDT,PELTNER \ SETO WOOD & SCHWEICKERT LLP Steven N.H. Wood Attorneys for ARNDT PELTNER, Individually Settlenrent Agreement and Release ~ Estate of Bartsch (v.03.11.2019) Page 6 of 6ASSIGNMENT OF ESTATE INTEREST Inve: Estate of Hans Herbert Bartsch San Francisco Superior Court, Case No. PES-08-291846 Norman Bartsch Herterich (‘‘Assignor’) hereby makes this Assignment (the “Assignment”) to Amdt Peltner, individually (“Assignee”) of his entire interest in the Estate of Hans Herbert Bartsch (the “Estate”), San Francisco Superior Court, Cass No. PES-08-291846 (the “Probate Case”) as follows: WHEREAS, the 2007 Will of Hans Herbert Bartsch (“Bartsch”) included a 1% residue gift to Peter Buhrmann (the “1% Buhrmann Residue Gift’). Bartsch died on October 25, 2008. By Order entered December 10, 2008 in the Probate Case, the 2007 Will was admitted to probate and Assignee was appointed as Executor of the Estate. WHEREAS, on August 2, 2018, Assignor acquired the 1% Buhrmann Residue Gift by assignment from Buhrmann, which has an approximate value of $20,733.61 based on the February 28, 2017 Amended Petition for Approval of Accounting filed in the Probate Case. WHEREAS, by a Settlement Agreement and Release dated February 25, 2019 (the “Settlement”), Assignor and Assignee (individually and as Executor) reached a settlement of all claims between them, which included as part of the consideration an assignment of Assignor’s entire interest in the Estate to Assignee, individually. WHEREAS, the Settlement was conditioned on approval by the Court in the Probate Case, which was obtained on March » 2019, NOW, THEREFORE, in consideration of Twenty Thousand Dollars ($20,000.00) from - Assignee, individually, receipt of which is hereby acknowledged: 1. Assignor hereby irrevocably assigns all right, title and interest in and to his 1% Buhrmann Residue Gift, and all his right, title and interest in the Estate, to Assignee, individually. 2. Assignor warrants that he has the right to make this Assignment; has good title to the interests assigned herein; and has not sold or encumbered and will not sell or encumber any rights assigned herein, nor take any action to impede Assignee’s ability to exercise any rights related to those acquired herein or to realize payment of the full amount of the inheritance when the assets of the Estate are distributed to the beneficiaries named in the 2007 Will. Dated: March »2019 NORMAN BARTSCH HERTERICH EXHIBIT A - ASSIGNMENT - Estate of Bartsch (v.03.11.2019) Page 1 of 2[acknowledgement on following page] ACKNOWLEDGMENT ‘A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which the certificate is attached, and not the truthfulness, accuracy, or validity of that document. State