Hutton v. Hafif

Opinion

I. INTRODUCTION

In this malicious prosecution lawsuit, plaintiff, Tenie Hutton, appeals from two orders. To begin with, Ms. Hutton appeals from a July 13, 2005 judgment

A

. The First Action

In 1991, Mr. Hafif and his firm began representing Ms. Hutton in a discrimination action filed against GTE, which settled in 1992. Thereafter, Ms. Hutton and Mr. Hafif and his firm became involved in a dispute about approximately $60,000 in costs. Between June 1993 and February 1994, a number of former clients of Mr. Hafif and his firm, including Ms. Hutton, filed a series of State Bar complaints and lawsuits against Mr. Hafif and his firm.

In June 1993, Ms. Hutton, who was represented by a lawyer named Sasson Sales, filed suit in Los Angeles Superior Court seeking in part the recovery of costs that Mr. Hafif and his firm kept from the GTE settlement. (Hutton v. Hafif (Super. Ct. L.A. County, 1994, No. BC084002).) This is the first lawsuit between Ms. Hutton and Mr. Hafif and his firm. Ms. Hutton’s legal malpractice action against Mr. Hafif and his firm was dismissed after a demurrer to her second amended complaint was sustained without leave to amend. In addition to dismissing the first lawsuit, Retired Los Angeles Superior Court Judge Melvin Grover imposed $25,000 in sanctions pursuant to section 128.5 against Ms. Hutton and her attorney, Mr. Sales, for filing a frivolous lawsuit in bad faith. The sanctions order was entered on October 7, 1994. The judgment of dismissal and the sanctions order were reversed on appeal by Division Two of this appellate district, which found Ms. Hutton’s second amended complaint stated a fiduciary duty breach cause of ¿ction. (Hutton v. Hafif (Aug. 20, 1997, B088405) [nonpub. opn.].)

B. The Second Action

On May 6, 1994, Mr. Hafif and his firm filed an action against Ms. Hutton and seven others in Orange County Superior Court. (Law Offices of Herbert Hafif v. Killingsworth (Super. Ct. Orange County, 1996, No. 729347).) This is the second lawsuit between the parties. For purposes of clarity, we will refer to this second lawsuit between the parties as the Killingsworth action. The

On December 9, 1996, Retired Orange County Superior Court Judge Robert E. Thomas granted Ms. Hutton’s special motion to strike the second amended complaint in the Killingsworth action pursuant to section 425.16. Division Three of the Court of Appeal for the Fourth Appellate District affirmed Retired Judge Thomas’s order granting the'special motion to strike the second amended complaint in the Killingsworth action. (Hafif v. Soukup (Apr. 27, 2000, G020977) [nonpub. opn.].) The Court of Appeal opinion held that the claims of Mr. Hafif and his firm against Ms. Hutton in the Killingsworth action were predicated upon allegations that she made complaints to the State Bar and newspaper articles repeating the allegations. The Court of Appeal held: “Hutton’s allegedly actionable conduct consisted of her making complaints to the State Bar. Such statements clearly fall within the action protected by [section 425.16].” (Ibid.) The Court of Appeal further stated: “The only evidence potentially showing merit in Hafif’s claims came from Hutton’s diaries, which were prepared for transmission to her lawyer. The trial court properly concluded they were inadmissible.” (Ibid.)

On November 30, 2000, Ms. Hutton filed the present lawsuit in which she alleged Mr. Hafif and his firm maliciously prosecuted the Killingsworth action against her. On July 20, 2001, Mr. Hafif and his firm filed a special motion to strike the present malicious prosecution action. Mr. Hafif and his firm argued: they had probable cause to file the Killingsworth action because the totality of facts demonstrated Ms. Hutton was a participant in a conspiracy to file a malicious and defamatory action against them; Retired Judge Goldstein relied on Ms. Hutton’s diaries to deny a summary judgment motion directed at her second amended complaint in the Killingsworth action; they had probable cause to believe the diaries were admissible; and the Court of Appeal for the Fourth Appellate District found the diaries provided potential, albeit inadmissible, evidence of a conspiracy. On June 27, 2002, Retired Judge Alban I. Niles denied the special motion to strike on the ground Mr. Hafif and his firm did not have probable cause to file the Killingsworth action. Mr. Hafif and his firm appealed from Retired Judge Niles’s order denying the special motion to strike.

On May 11, 2004, we reversed Retired Judge Niles’s order denying the special motion to strike filed by Mr. Hafif and his firm. We concluded Retired Judge Goldstein’s denial of Ms. Hutton’s summary judgment motion in the Killingsworth action established probable cause under Wilson v. Parker, Covert & Chidester (2002) 28 Cal.4th 811 , 816-826 [ 123 Cal.Rptr.2d 19 , 50 P.3d 733 ]. We remanded the case and directed Retired Judge Niles to enter a new order granting the special motion to strike. (Hutton v. Hafif (May 11, 2004, B162572) [nonpub. opn.].) The Supreme Court denied review on February 16, 2005.

On May 26, 2005, Judge Gutman entered an order granting the special motion to strike and a judgment of dismissal. On May 10, 2005, Judge Gutman granted the section 425.16, subdivision (c) attorney fees motion filed by Mr. Hafif and his firm. On July 13, 2005, Judge Gutman entered a judgment awarding Mr. Hafif and his firm $166,388.19 in attorney fees and $4,195.69 in costs. Ms. Hutton filed a notice of appeal from the May 26 and July 13, 2005 judgments on September 19, 2005.

On October 7, 2005, Ms. Hutton filed a motion for relief from the judgment and attorney fees orders because on October 5, 2005, Governor Arnold Schwarzenegger signed Assembly Bill No. 1158 (2005-2006 Reg. Sess.)-which amended section 425.16, subdivision (b)(3) and enacted section

A. Standard of Review and Burdens of Proof

A special motion to strike may be filed in response to “ ‘a meritless suit filed primarily to chill the defendant’s exercise of First Amendment rights.’ ” (Dove Audio, Inc. v. Rosenfeld, Meyer & Susman (1996) 47 Cal.App.4th 777 , 783 [ 54 Cal.Rptr.2d 830 ], quoting Wilcox v. Superior Court (1994) 27 Cal.App.4th 809 , 815, fn. 2 [ 33 Cal.Rptr.2d 446 ], disapproved on another point in Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53 , 68, fn. 5 [ 124 Cal.Rptr.2d 507 , 52 P.3d 685 ].) Under section 425.16, any cause of action against a person “arising from any act . . . in furtherance of the . . . right of petition or free speech . . .” in connection with a public issue must be stricken unless the courts finds a “probability” that the plaintiff will prevail on whatever claim is involved. (§ 425.16, subd. (b)(1); see Dowling v. Zimmerman (2001) 85 Cal.App.4th 1400 , 1415 [ 103 Cal.Rptr.2d 174 ]; Dove Audio, Inc. v. Rosenfeld, Meyer & Susman, supra, 47 Cal.App.4th at p. 783.) There is no requirement though that the suit be brought with the specific intent to chill the defendant’s exercise of free

When a special motion to strike is filed, the trial court must consider two components. First, the moving party has the initial burden of establishing a prima facie case that the plaintiff’s cause of action arose out of the defendant’s actions in the furtherance of the rights of petition or free speech. (§ 425.16, subd. (b)(1); Flatley v. Mauro (2006) 39 Cal.4th 299 , 314 [ 46 Cal.Rptr.3d 606 , 139 P.3d 2 ]; Rusheen v. Cohen (2006) 37 Cal.4th 1048 , 1056 [ 39 Cal.Rptr.3d 516 , 128 P.3d 713 ].) Second, once the defendant establishes the challenged cause of action claims arise out of the exercise of petition or free expression rights, the burden shifts to the plaintiff. The plaintiff must then establish a probability that he or she will prevail on the merits. (§ 425.16, subd. (b)(1); Flatley v. Mauro, supra, 39 Cal.4th at p. 314; Rusheen v. Cohen, supra, 37 Cal.4th at p. 1056.) The Supreme Court has defined the probability of prevailing burden as follows: “ ‘[T]he plaintiff “must demonstrate that the complaint is both legally sufficient and supported by a sufficient prima facie showing of facts to sustain a favorable- judgment if the evidence submitted by the plaintiff is credited.” ’ (Wilson v. Parker, Covert & Chidester[, supra,] 28 Cal.4th [at p.] 821 [ 123 Cal.Rptr.2d 19 , 50 P.3d 733 ], quoting Matson v. Dvorak (1995) 40 Cal.App.4th 539 , 548 [ 46 Cal.Rptr.2d 880 ].)” (Navellier v. Sletten, supra, 29 Cal.4th at pp. 88-89; see Briggs v. Eden Council for Hope & Opportunity, supra, 19 Cal.4th at p. 1123.) We will detail later the special burdens of proof imposed on a plaintiff in a SLAPPback action when a special motion to strike is filed. In reviewing an order granting a special motion to strike, we use our independent judgment to determine whether the defendant was engaged in a protected activity and the plaintiff has sustained his or her burden of prevailing on the challenged cause of action. (Flatley v. Mauro, supra, 39 Cal.4th at pp. 325-326; Rushen v. Cohen, supra, 37 Cal.4th at p. 1055.)

B. The Attorney Fees Award

Ms. Hutton argues that the attorney fees award must be reversed. She relies on section 425.18 which provides in part: “(b)- For purposes of this section, the following terms have tire following meanings: [f] (1) ‘SLAPPback’ means any cause of action for malicious prosecution or abuse of process arising

After Ms. Hutton filed her opening brief on appeal, the California Supreme Court issued its opinion in Soukup v. Law Offices of Herbert Hafif, supra, 39 Cal.4th at pages 278-297. Soukup involved a malicious prosecution action against defendants in the current action, which was brought by one of plaintiff’s alleged coconspirators in the Killingsworth action, Peggy J. Soukup. (Id. at pp. 269-275.) (One of the defendants in Ms. Soukup’s lawsuit is not named in the present action.) In Soukup, the trial court denied the defendants’ special motions to strike her malicious prosecution complaint. (Soukup v. Law Offices of Herbert Hafif, supra, 39 Cal.4th at pp. 275-276.) The Soukup case was assigned to this division of the Second Appellate District. We initially affirmed the order denying the special motions to strike. (Soukup v. Law Offices of Herbert Hafif (Aug. 16, 2002, B152759) [nonpub. opn.].) But upon grant of reyiew and remand, and after carefully reevaluating the matter, we reversed our earlier ruling. (Soukup v. Law Offices of Herbert Hafif (June 30, 2004, B152759) [nonpub. opn.].) We held the special motions to strike should have been granted. (Soukup v. Law Offices of Herbert Hafif, supra, 39 Cal.4th at pp. 277-278.) Our Supreme Court granted Ms. Soukup’s review petition. While the case was pending before our Supreme Court, the Legislature enacted and Governor Schwarzenegger signed as urgency legislation section 425.18. Ultimately, the Supreme Court reversed our judgment and ordered that the defendants’ special motions to strike be denied. (39 Cal.4th at pp. 278, 297.)

In Soukup, our Supreme Court stated: “[T]he Legislature amended the anti-SLAPP statute to add section 425.18, which defines ‘any cause of action for malicious prosecution or abuse of process arising from the filing or maintenance of a prior cause of action that has been dismissed pursuant to a special motion to strike under Section 425.16’ as a ‘SLAPPback.’ (§ 425.18, subd. (b)(1).) The Legislature declared that SLAPPbacks ‘should be treated differently . . . from an ordinary malicious prosecution action because a SLAPPback is consistent with the Legislature’s intent to protect the valid exercise of the constitutional rights of free speech and petition by its deterrent effect on SLAPP . . . litigation and by its restoration of public confidence in participatory democracy.’ (§425.18, subd. (a).) Section 425.1-8 exempts SLAPPbacks from certain procedures otherwise applicable to motions to

The parties acknowledge that section 425.18 applies to cases such as this which were filed prior to its enactment and are pending on appeal. Soukup squarely so states. (Soukup v. Law Offices of Herbert Hafif, supra, 39 Cal.4th at pp. 280-281.) Plaintiff’s malicious prosecution claim was based on the filing and maintenance of the Killingsworth action by Mr. Hafif and his firm that was dismissed pursuant to section 425.16.'Thus, the present malicious prosecution lawsuit is within the statutory definition of a SLAPPback action. (§ 425.18, subd. (b)(1).) , .

Mr. Hafif and his firm present the following arguments as to why section 425.18 should not apply to this lawsuit; The current lawsuit is a “run-of-the-mill malicious prosecution action” which entitled them to bring their special motion to strike under the standard section 425.16 provisions; under Flatley v. Mauro, supra, 39 Cal.4th at pages 305, 313-318, Ms. Hutton has unclean hands in that she attempted to extort money from them so that she should not have prevailed in her motion to strike in the Killingsworth action; and Flatley abrogated the legal basis for Ms. Hutton’s special motion to strike the Killingsworth action. We respectfully disagree. Ms. Hutton’s malicious prosecution claim in this lawsuit is clearly and unequivocally a SLAPPback action as it.is defined by section 425.18, subdivision (b)(1). In any event, the section 425.16 dismissal of the Killingsworth action was affirmed by our Fourth Appellate District colleagues on April 27, 2000. (Hafif v. Soukup, supra, G020977.) Defendants have not cited any authority which would allow us to relitigate the merits of the Fourth Appellate District’s now final April 27, 2000 opinion affirming the order granting Ms. Hutton’s special motion to strike in the Killingsworth action. This case is a SLAPPback action subject to section 425.18.

As noted, section 425.18 treats the right to attorney fees differently when a defendant’s, special motion to strike á malicious prosecution claim is granted in a SLAPPback action. Section 425.16, subdivision (c), the mandatory attorney fees provision in special motion to strike litigation, is inapplicable in a SLAPPback action. Section 425.18, subdivision (c) states in part, “The provisions of subdivision[] (c). .. of Section 425.16 . . . shall not apply to a special motion to strike a SLAPPback.” (See Soukup v. Law Offices of Herbert Hafif, supra, 39 Cal.4th at p. 282.) The attorney fees provision applicable to SLAPPback actions states, “If the court finds that a special

C. Nothing in Section 425.18 Requires the Order Granting the Special Motion to Strike Be Reversed

Ms. Hutton argues the order granting the special motion to strike must be reversed. No doubt, as noted, section 425.18 applies to cases pending on appeal. (Soukup v. Law Offices of Herbert Hafif, supra, 39 Cal.4th at pp. 280-281.) But this case is different from Soukup in a material respect. In this case, in our 2004 unpublished opinion, we reversed the order denying the special motion to strike. In compliance with our decision, Judge Gutman granted the special motion to strike. A sound argument can be made that because we had previously decided the special motion to strike must be granted and Ms. Hutton’s review petition was denied, principles of res judicata and the law of the case doctrine prevent her from litigating this issue a second time notwithstanding the amendments to section 425.18, subdivision (h). (See Morohoshi v. Pacific Home (2004) 34 Cal.4th 482 , 491 [ 20 Cal.Rptr.3d 890 , 100 P.3d 433 ]; People v. Stanley (1995) 10 Cal.4th 764 , 786-787 [ 42 Cal.Rptr.2d 543 , 897 P.2d 481 ].) Our situation is different from that present in Soukup. In Soukup, we ordered that the special motion to strike be granted and the review petition was granted. There was no binding appellate court judgment in Soukup when our Supreme Court held section 425.18 applies to pending appeals and reached the merits of the special motion to strike. We need not address the question of whether section 425.18 can apply on appeal to the merits of a special' motion to strike when a prior final appellate court decision ordered it be granted. We assume for purposes

Ms. Hutton argues we must order the special motion to strike filed by Mr. Hafif and his firm be denied because of section 425.18, subdivision (h). Section 425.18, subdivision (h) materially restricts the ability of a defendant named in a malicious prosecution or process abuse claim in a SLAPPback action to file a special motion to strike. As previously noted, section 425.18, subdivision (h) states, “A special motion to strike may not be filed against a SLAPPback by a party whose filing or maintenance of the prior cause of action from which the SLAPPback arises was illegal as a matter of law.” In Soukup, our Supreme Court explained: “An illegal act is an act ‘[fjorbidden by law.’ (Black’s Law Dict. (7th ed. 1999), p. 750.) By specifying that only those defendants whose filing or maintenance of the underlying action was illegal as a matter of law are barred from bringing a special motion to strike a SLAPPback, it is clear that the Legislature intended to require something more than that the underlying action was dismissed as a SLAPP before section 425.18, subdivision (h) applies.” (Soukup v. Law Offices of Herbert Hafif, supra, 39 Cal.4th at p. 283, fn. omitted.)

The Supreme Court has set forth how the parties are to litigate the issue of whether the underlying lawsuit was illegal as matter of law once a special motion to strike is filed in a SLAPPback action. First, the defendant must make the threshold showing that the underlying lawsuit arises from the exercise of the rights of petition or. free expression. (§425.16, subd. (b)(1); Soukup v. Law Offices of Herbert Hafif, supra, 39 Cal.4th at p. 286; Zamos v. Stroud (2004) 32 Cal.4th 958 , 965 [ 12 Cal.Rptr.3d 54 , 87 P.3d 802 ].) This is the same defendant’s burden that exists in the case of a special motion to strike an ordinary malicious prosecution cause of action. Second, the burden then shifts to the plaintiff to show that the underlying lawsuit was illegal as a matter law. (Soukup v. Law Offices of Herbert Hafif, supra, 39 Cal.4th at pp. 286-287.) Third, the plaintiff must show the underlying action was illegal because either the defendant concedes the unlawfulness of the “assertedly protected activity” or its illegality is “conclusively established by the evidence” presented in connection with the special motion to strike.. (Id. at pp. 286-287; see Paul for Council v. Hanyecz (2001) 85 Cal.App.4th 1356 , 1360-1361 [ 102 Cal.Rptr.2d 864 ], disapproved on other grounds in Equilon Enterprises v. Consumer Cause, Inc., supra, 29 Cal.4th at p. 68, fn. 5.) Fourth, the plaintiff, in sustaining this burden of proof, “must identify with particularity the statute or statutes” violated by the filing and maintenance of the underlying lawsuit. (Soukup v. Law Offices of Herbert Hafif, supra, 39 Cal.4th at p. 287.) Fifth, the plaintiff must demonstrate the manner in which the statute or statutes were contravened with reference to the specific statutory elements that have been violated. (Ibid.)

In order for an underlying action to be illegal as a matter, of law, its illegality must be conceded by the defendant or conclusively established by the evidence to be so. (Soukup v. Law Offices of Herbert Hafif, supra, 39 Cal.4th at pp. 286-287.) Mr. Hafif and his firm do not concede their filing or maintenance of the Killingsworth action was illegal. (Flatley v. Mauro, supra, 39 Cal.4th at p. 321; see Chavez v. Mendoza (2001) 94 Cal.App.4th 1083 , 1090 [ 114 Cal.Rptr.2d 825 ].) Nor have Mr. Hafif and his firm “effectively conceded” the illegal nature of the Killingsworth action. (Paul for Council v. Hanyecz, supra, 85 Cal.App.4th at p. 1367; see Yu v. Signet Bank/Virginia (2002) 103 Cal.App.4th 298 , 317, fn. 3 [ 126 Cal.Rptr.2d 516 ].) Further, Mr. Hafif and his firm do not concede the existence of any facts that conclusively establish the Killingsworth action was illegal as a matter of law. (Flatley v. Mauro, supra, 39 Cal.4th at pp. 320-321, 328-329.)

Further, Ms. Hutton has failed to conclusively prove by citation to the evidence the Killingsworth action was illegal as a matter of law because it violated Business and Professions Code section 6094, subdivision (a). The complaint in the Killingsworth action alleged: Ms. Hutton, as part of a conspiracy to harm Mr. Hafif and his firm, filed an unjustified civil action against them; one member of the conspiracy wrote a letter “to Congress” with other former clients; Ms. Hutton caused a newspaper article to be published in which Mr. Hafif and his firm were accused of overcharging for costs; complaints were made to “labor commissions and pension boards”; Ms. Hutton caused to be publicly republished the content of communications made to the State Bar; and Ms. Hutton and' her coconspirators sought, by presenting a united front, to pressure defendants to reduce the fees and costs owed for their legal services. Among other things, the second amended complaint

At oral argument, Ms. Hutton argued that even though the complaint and second amended complaint adverted to conduct other than the filing of the State Bar complaint by her, the Killingsworth action is still “illegal as a matter of law” within the meaning of section 425.18, subdivision (h). Ms. Hutton asserted at oral argument that if only a part of the Killingsworth action violated Business and Professions Code section 6094, subdivision (a) by seeking compensation, for damages resulting from her complaint to the State Bar, then it was still “illegal as a matter of law” within the meaning of section 425.18, subdivision (h). And if the Killingsworth action was “illegal as a matter of law” within the meaning of section 425.18, subdivision (h), Ms. Hutton asserts Mr.-Hafif and his firm could not have filed their special motion to strike. As a result, Ms. Hutton argues we must reverse Judge Gutman’s order granting the special motion to strike.

In Flatley, our Supreme Court held that the section 425.16 motion to strike procedure does not apply when the “defendant concedes, or the evidence conclusively establishes” that the assertedly protected petitioning activity is illegal as a matter of law. (Flatley v. Mauro, supra, 39 Cal.4th at p. 320.) Our Supreme Court explained: “[W]here a defendant brings a motion to strike under section 425.16 based on a claim that the plaintiff’s action arises from activity by the defendant in furtherance of the defendant’s exercise of protected speech or petition rights, but either the defendant concedes, or the evidence conclusively establishes, that the assertedly protected speech or petition activity was illegal as a matter of law, the defendant is precluded from using the anti-SLAPP statute to strike the plaintiff’s action.” (Ibid.) Our Supreme Court characterized the Illinois lawyer’s activity as extortion which is not entitled to any constitutional protection for the exercise of speech or petition rights. (Id. at pp. 305, 326-333.) Ms. Hutton contends that in Flatley some of the Illinois lawyer’s conduct was perfectly legal—requesting settlement and filing the lawsuit. Yet, our Supreme Court, according to Ms. Hutton, found the Illinois lawyer’s conduct, both legitimate and otherwise, illegal as a matter of law.

But it is noteworthy that Flatley did not involve the application of section 425.18, subdivision (h). Unlike this case, Flatley was not a SLAPPback action. (Flatley v. Mauro, supra, 39 Cal.4th at p. 317, fn. 7.)Moreover, our Supreme Court found the prelitigation threats in Flatley involved “extreme circumstances.” (Id. at p. 332, fn. 16.) From the initial settlement demand letter to the last threatening telephone call, the Illinois lawyer engaged in extortion—conduct which is not protected by the Federal and state Constitutions. Further, in Soukup, our Supreme Court explained there are different evidentiary burdens in a traditional special motion to strike case and in a SLAPPback action. (Soukup v. Law Offices of Herbert Hafif, supra, 39 Cal.4th at pp. 282-286.) Flatley did not directly address Ms. Hutton’s argument that if only a part of the underlying action was unlawful because it violated a statute, Business and Professions Code section'6094, subdivision (a), it was still “illegal as a matter of law” within, the meaning of section 425.18,

By contrast, although not discussing Ms. Hutton’s precise contention, Soukup directly identified the plaintiff’s burden to prove an underlying action is illegal in the section 425.18, subdivision (h) context, (Soukup v. Law Offices of Herbert Hafif supra, 39 Cal.4th at pp.. 268, 283-284, 286-291.) The Soukup opinion, utilizing the section'425.18, subdivision (h) language and legislative documents, held the plaintiff’s burden in a SLAPPback action was to prove the filing and maintenance of the underlying lawsuit was “illegal as a matter of law” not “partially illegal” as Ms. Hutton suggests.. {Ibid.) In Soukup, as we have previously explained, our Supreme Court described an illegal act thus: “An illegal act is an act ‘[fjorbidden by law.’ (Black’s Law Dict. (7th ed. 1999), p. 750.)” (Soukup v. Law Offices of Herbert Hafif , supra, 39 Cal.4th at p. 283, fn. omitted.) Part of the Killingsworth action, that which sought compensation because Ms. Hutton made a complaint to the State Bar, constituted conduct statutorily forbidden by law, i.e., Business and Professions Code section 6094, subdivision (a). That being said, the evidence does not indisputably demonstrate the remainder of the Killingsworth action was an act forbidden by any statute. Because a material part of the Killingsworth action violated no statute, its filing and maintenance was not “illegal as a matter of law” within the meaning of section 425.18, subdivision (h). Because the Killingsworth action was not “illegal as a matter of law,” Judge Gutman’s order dismissing Ms. Hutton’s complaint cannot be set aside because the special motion to strike could never have been filed.

D.. The 2005 Amendment to Section 425.16, Subdivision (b)(3)

Ms. Hutton asserts that the order granting the special motion to strike her malicious prosecution action should be reversed because of the 2005 amendment to section 425.16, subdivision (b)(3) which states; “If the court determines that the plaintiff has established a probability that he or she will prevail on the claim, neither that determination nor the fact of that determination shall be admissible in evidence at any later stage of the case,, or in any subsequent action, and no burden of proof or degree of proof otherwise applicable shall be affected by that determination in any later stage of the case or in any subsequent proceeding.” (Italics added.) We assume for purposes of discussion plaintiff can rely on the 2005 amendment to section 425.16, subdivision (b)(3) notwithstanding our prior unpublished opinion directing that the special motion to strike be granted.

As originally introduced on February 22, 2005, Assembly Bill No. 1158 proposed that section 425.16 be amended to add subdivisions (b)(4) and (d)(2). (Assem. Bill No. 1158 (2005-2006 Reg. Sess.) as introduced Feb. 22, 2005, § 1, pp. 2-3.) The initially proposed but ultimately rejected proposed amendment to section 425.16, subdivision (b)(4) would have provided, “The denial of a defendant’s special motion to'strike or other dispositive motion by the trial court or the affirmance of the trial court’s denial of the motion by an intermediate appellate court shall not be deemed to be constitute probable cause for bringing or maintaining the cause of action challenged by the motion if the defendant eventually -ultimately prevails under this section.” (Assem. Bill No. 1158 (2005-2006 Reg. Sess.) § 1, p. 3.) Section 2' of Assembly Bill No. 1158 as amended April 25', 2005, explained the proposed amendments to section 425.16 as follows: “It is the intent of the Legislature, in adding paragraph (2) to subdivision (d) of Section 425.16 of the Code of Civil Procedure, to overrule the decision in Soukup v. Stock (2004) 118 Cal.App.4th 1490 [ 15 Cal.Rptr.3d 303 ], petition for review granted 10/20/04,

However, the initially proposed additions of subdivisions (b)(4) and (d)(2) to section 425.16 were not enacted but were abandoned by an amendment to Assembly Bill No. 1158 on August 15, 2005, in the Senate. (Assem. Bill No. 1158 (2005-2006 Reg. Sess.) as amended Aug. 15, 2005, § 1, p. 4.) Instead, section 425.16, subdivision (b)(3) was amended to provide: “If the court determines that the plaintiff has established a probability that he or she will prevail on the claim, neither that determination nor the fact of that determination shall be admissible in evidehce at any later stage of the case, or in any subsequent action, and no burden of proof or degree or proof otherwise applicable shall be affected by that determination in any later stage of the case or in any subsequent proceeding.” (Ibid., italics added.) This was the amendment that was adopted by the Legislature and signed into law by Governor Schwarzenegger.

As a Senate Committee on the Judiciary analysis explained, amending section 425.16, subdivision (b)(3) .in this manner was only meant to be a “narrow abrogation” of Wilson. According to a Senate judiciary committee analysis: “This bill will enhance the ability of SLAPP victims to recover damages, for being SLAPPed .... [I]t would narrowly abrogate a part of the Supreme Court decision in Wilson v. Parker, Covert & Chi[]dester, [supra,] 28 Cal.4th 811 , in which the Court narrowly construed legislative intent and declined to bar the denial of an anti-SLAPP motion from having an adverse effect in a later action. That ruling effectively bars many SLAPP victims from filing a SLAPPback action even though that prior denial of the motion by the trial court was overturned on appeal. The proposed limited abrogation would allow those SLAPP victims to file a SLAPPback claim. (See Comment 3.)” (Sen. Com. on Judiciary, Analysis of Assem. Bill No. 1158 (2005-2006 Reg. Sess.) as amended Aug. 15, 2005, pp. 6-7, italics added.)

Comment 3 of the Senate Committee on the Judiciary analysis further explains: “[In Wilson], the Court was asked to construe (b)(3) to bar a trial

The Legislature did not intend to completely abrogate Wilson in the manner argued by Ms. Hutton. Indeed, changes in the Senate were made to Assembly Bill No. 1158 (2005-2006 Reg. Sess.), as it was initially introduced, in order to avoid abrogating the analysis in Wilson about the effect of

In this case, the issue is not the effect of .a merits-based denial of the special motion to strike in the Killingsworth action. Rather, the controlling issue is the effect of Retired Judge Goldstein’s denial of Ms. Hutton’s summary judgment motion in the Killingsworth action. Nothing in the 2005 amendment to section 425.16, subdivision (b)(3) changes the well-established rule of law applicable to a malicious prosecution complaint that the denial of a summary judgment motion in the underlying action establishes probable cause to file that lawsuit. Thus, assuming for .the sake of argument the effect of the 2005 amendment to section 425.16, subdivision (b)(3) can be raised in the current appeal, Judge Gutman’s order granting the special motion to strike was entirely correct.

E. Other Contentions

The parties raise other contentions. Some of the parties’ arguments, including those concerning the effect of Crowley v. katleman (1994) 8 Cal.4th 666 , 679, 695 [ 34 Cal.Rptr.2d 386 , 881 P.2d 1083 ], on the present lawsuit and the Killingsworth action, are deftly disguised efforts to relitigate whether we should have ordered the special motion to strike granted, apart from the 2005 amendment to section 425.16 and the enactment of section 425.18. Insofar as the parties seek reconsideration of the merits of our prior May 11, 2004 unpublished opinion ordering entry of the special motion to strike, apart from the effect of the 2005 amendment to section 425.16 and the enactment of section 425.18, principles of res judicata and law of the case warrant us not reconsidering our prior decision. (People v. Boyer (2006) 38 Cal.4th 412 , 441 [ 42 Cal.Rptr.3d 677 , 133 P.3d 581 ]; People v. Whitt (1990) 51 Cal.3d 620 , 638 [ 274 Cal.Rptr. 252 , 798 P.2d 849 ].) Other than as we have noted, the law of the case doctrine controls the outcome of this appeal in terms of the merits of plaintiff’s case.

he order granting the special motion to strike is affirmed. The order granting attorney fees to defendants, Law Offices of Herbert Hafif and Herbert Hafif, pursuant to Code of Civil Procedure section 425.16, subdivision (c) is reversed. The order imposing costs in the sum of $4,195.64 in their favor other than attorney fees is affirmed. Each side to bear their own costs on appeal.

Armstrong, J., and Mosk, J., concurred.

A petition for a rehearing was denied May 24, 2007, and appellant’s petition for review by the Supreme Court was denied August 8, 2007, SÍ53415.