Finato v. Keith A. Fink & Associates

Filed 8/23/21

CERTIFIED FOR PARTIAL PUBLICATION *

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION ONE

CLAUDIA FINATO, B303978

Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. SC126362)
v.

KEITH A. FINK & ASSOCIATES
et al.,

Defendants and Appellants.

APPEAL from an order of the Superior Court of
Los Angeles County, Harry Jay Ford III, Judge. Affirmed in part
and reversed in part.
Law Offices of Olaf J. Muller and Olaf J. Muller for
Defendants and Appellants.

*Pursuant to California Rules of Court, rules 8.1105(b)
and 8.1110, this opinion is certified for publication, with the
exception of parts D and E of the Discussion.
 Law Offices of Larry R. Glazer and Nicolette Glazer for
Plaintiff and Respondent.
____________________________
This is the second appeal in this action between plaintiff
and respondent Claudia Finato and defendants and appellants
Keith A. Fink & Associates (KAF&A), Keith A. Fink, and Sarah
Hernandez, plaintiff’s former attorneys. In the first appeal, we
affirmed the trial court’s striking of two of plaintiff’s causes of
action under Code of Civil Procedure section 425.16, 1 the anti-
SLAPP (Strategic Lawsuit Against Public Participation) statute.
We further modified the trial court’s order to strike specific
additional allegations within three other causes of action which
we deemed arose from protected conduct and on which plaintiff
had not shown a probability of prevailing.
On remand, defendants moved for judgment on the
pleadings on plaintiff’s remaining allegations, claiming they were
time-barred. The trial court granted the motion with leave to
amend to clarify when certain events took place. Plaintiff filed a
first amended complaint (FAC). Defendants then filed a second
anti-SLAPP motion arguing that eight paragraphs in the FAC
repleaded allegations analogous to allegations struck in the first
appeal.
The trial court denied the motion. It found that defendants
had failed to establish that the FAC’s allegations arose from
protected conduct. To the extent the allegations were precluded
by the first appeal, the court concluded that defendants’
challenge should have been brought as an ordinary motion to

1 Further unspecified statutory references are to the
Code of Civil Procedure.

2
strike material not in conformity with an earlier court order, not
as an anti-SLAPP motion.
The trial court further ruled that seven of the eight
paragraphs targeted by defendants did not implicate protected
conduct under the reasoning of the first appeal. The court found
that one of the eight paragraphs did run afoul of the first appeal
but, again, should have been challenged through an ordinary
motion to strike.
In the published portion of this opinion, we conclude that a
second anti-SLAPP motion is a proper procedural vehicle to
challenge an amended pleading renewing allegations previously
stricken under section 425.16. Accordingly, the trial court should
have granted defendants’ motion as to the one paragraph
precluded by our first appeal.
In the unpublished portion, we affirm the trial court’s
determination that the other seven paragraphs challenged by
defendants do not arise from protected conduct.

PROCEDURAL BACKGROUND

1. Original complaint 2
On September 6, 2016, plaintiff filed a complaint against
defendants alleging the following:
In March 2011, plaintiff retained KAF&A, a law firm, to
represent her in litigation against her employer, LABite.com
(LABite). Fink and Hernandez were attorneys employed at
KAF&A. Plaintiff entered into a contingency fee agreement
entitling KAF&A to 50 percent of any amounts recovered. The

2 We take judicial notice of plaintiff’s original complaint.
(Evid. Code, §§ 452, subd. (d), 459.)

3
agreement further provided that if plaintiff terminated KAF&A,
the firm could recover the “reasonable value” of its services and
any unreimbursed costs from any subsequent recovery by
plaintiff.
In September 2011, KAF&A filed a class action complaint
on behalf of plaintiff against LABite alleging wrongful
termination and violations of the Labor and Business and
Professions Codes. After several other cases against LABite were
consolidated with or related to plaintiff’s case, the trial court
certified a class in May 2013 with plaintiff as one of three class
representatives, and KAF&A as class cocounsel with another
firm.
Plaintiff’s relationship with KAF&A deteriorated at this
point and the firm stopped communicating with her or informing
her of developments in the case. In February 2014, without
consulting with plaintiff or any class members, KAF&A and its
class cocounsel reached a settlement with LABite. Plaintiff
objected to the terms of the settlement, and in April 2014,
terminated KAF&A and retained new counsel.
KAF&A and class cocounsel then filed an amended class
complaint naming a new class representative, Tim Baker, who
was willing to sign the settlement agreement. Plaintiff formally
opted out of the class settlement to preserve her individual
claims. The trial court approved the class settlement in
October 2014, awarding $420,000 in attorney fees, half of which
went to KAF&A.
On July 1, 2015, plaintiff and LABite entered into a written
agreement settling plaintiff’s individual claims. Before LABite
disbursed any funds, KAF&A “asserted a lien for attorney fees” in
the litigation between plaintiff and LABite. Plaintiff filed a

4
motion to enforce her settlement agreement with LABite, which
the trial court denied. Plaintiff alleged that as of the filing of her
complaint against defendants, LABite had yet to disburse any
settlement proceeds to her.
Plaintiff asserted causes of action for malpractice, breach of
fiduciary duty, breach of contract, restitution, intentional
interference with contractual relations, intentional interference
with prospective economic advantage, and declaratory relief.
Plaintiff alleged numerous acts she claimed violated defendants’
duties to her, including negotiating and executing the class
settlement without her consent, abandoning plaintiff’s case and
substituting Baker as class representative, and asserting a lien to
which defendants were not entitled, thus undermining and
invalidating plaintiff’s settlement agreement with LABite.

2. First special motion to strike
Defendants filed a demurrer and a special motion to strike
under section 425.16. They argued that all of the conduct
plaintiff alleged in support of her causes of action took place
before or in connection with judicial proceedings and therefore
was protected under section 425.16. They further argued that
plaintiff could not show a probability of success on those causes of
action. Plaintiff filed an opposition.
The trial court denied the special motion to strike as to the
causes of action for malpractice, breach of fiduciary duty, breach
of contract, restitution, and declaratory relief, concluding that
protected conduct was not the gravamen of those causes of action.
It granted the motion as to the two intentional interference
causes of action, finding they were “based entirely on the
assertion of an attorney’s lien,” which was “a filing with a judicial
body regarding an issue before it,” and therefore protected under

5
section 425.16. The trial court concluded that plaintiff had not
met her burden to show a probability of success on the
intentional interference claims.
The trial court sustained the demurrer to the restitution
count but otherwise overruled the demurrer.

3. Finato I
Defendants appealed the trial court’s order denying in part
their special motion to strike, and plaintiff cross-appealed. In an
unpublished decision, we affirmed the order with modifications.
(Finato v. Fink (Oct. 2, 2018, B281357) [nonpub. opn.]
(Finato I).) 3
Our opinion engaged in the two well-established steps of
anti-SLAPP analysis: “ ‘First, the defendant must establish
that the challenged claim arises from activity protected by
section 425.16. [Citation.] If the defendant makes the required
showing, the burden shifts to the plaintiff to demonstrate the
merit of the claim by establishing a probability of success.’ ”
(Finato I, supra, B281357, quoting Baral v. Schnitt (2016)
1 Cal.5th 376, 384 (Baral).)

3 “An unpublished opinion may be cited or relied on: [¶]
(1) When the opinion is relevant under the doctrines of law of the
case, res judicata, or collateral estoppel . . . .” (Cal. Rules of
Court, rule 8.1115(b)(1).) As we discuss post, Finato I is relevant
here under the doctrine of law of the case, and we cite and rely on
it solely under that principle.

6
 a. Plaintiff’s cross-appeal
We began with plaintiff’s cross-appeal, holding that the
trial court properly struck the two intentional interference
claims. On the first step of anti-SLAPP analysis, plaintiff “d[id]
not dispute the trial court’s conclusion that filing a notice of lien
constitutes protected activity under section 425.16 . . . .”
(Finato I, supra, B281357.) 4 Further, the complaint “clearly
establishe[d] that defendants’ filing of the notice of lien was the
act allegedly disrupting plaintiff’s contractual or prospective
economic relations with LABite.” (Finato I, supra, B281357.)
Moving to the second step of anti-SLAPP analysis, we
agreed with the trial court that plaintiff failed to demonstrate the
merit of the intentional interference claims. Lacking was any
evidence to support the pleaded allegations that LABite refused
to disburse the settlement proceeds as a result of defendants’
notice of lien.
Also lacking was evidence that defendants had “wrongfully
asserted a lien for ‘50% of the gross value’ ” of plaintiff’s
settlement with LABite. Plaintiff herself submitted no evidence
regarding the notice of lien, and defendants’ evidence showed
they asserted the lien “ ‘pursuant to the parties[’] written
contract to pay attorneys’ fees’ without specifying a percentage or
amount.” (Finato I, supra, B281357.) Given the lack of evidence,
“we [could not] infer an intent to interfere or that actual
interference occurred.” (Ibid.)

4 Because in Finato I we interpreted plaintiff’s opening
brief to concede the trial court’s conclusion that filing a notice of
lien was protected under section 425.16, we did not address
whether that conclusion was correct.

7
 We rejected plaintiff’s arguments that section 425.16 was
unconstitutional because it was vague, overbroad, and gave
preference to attorney speech over her right to petition the
courts. We also rejected the argument defendants’ speech was
commercial and thus entitled to less protection.

b. Defendants’ appeal
We then addressed defendants’ appeal, in which they
contended that the causes of action the trial court declined to
strike also targeted protected conduct. We agreed in part.
We cited case law for the proposition “ ‘that actions based
on an attorney’s breach of professional and ethical duties owed to
a client are not SLAPP suits, even though protected litigation
activity features prominently in the factual background.’ ”
(Finato I, supra, B281357, quoting Castleman v. Sagaser (2013)
216 Cal.App.4th 481, 491.) Thus, “ ‘garden variety’ claims for
attorney malpractice or breach of fiduciary duty are not subject to
a special motion to strike under section 425.16.” (Finato I,
citing Kolar v. Donahue, McIntosh & Hammerton (2006)
145 Cal.App.4th 1532, 1539.) We limited that rule, however, “to
claims ‘brought by former clients against their former attorneys
based on the attorneys’ acts on behalf of those clients’; in
contrast, claims by former clients against former attorneys ‘based
upon statements or conduct solely on behalf of different clients,’
or ‘nonclients’ causes of action against attorneys,’ are subject to
section 425.16.” (Finato I, quoting Thayer v. Kabateck Brown
Kellner LLP (2012) 207 Cal.App.4th 141, 158.)
Applying these principles, we drew “a distinction between
plaintiff’s allegations concerning defendants’ acts in representing
her, either as a client or a class member, and defendants’ lien-
related conduct, which took place after plaintiff had terminated

8
defendants’ services and opted out of the class they represented.
Plaintiff’s allegations unrelated to the lien—namely, that
defendants settled the class claims without her consent,
abandoned her case, recruited a class representative with
adverse interests, and filed an amended class complaint
removing her as named representative—are based on defendants’
acts on behalf of plaintiff or the class of which she was a part.
Thus, as claims by a former client arising from the attorneys’ acts
on her behalf, they are not subject to section 425.16.” (Finato I,
supra, B281357.)
In contrast, “[p]laintiff’s allegations that defendants acted
wrongfully by asserting their lien and maintaining entitlement to
a share of [plaintiff’s] settlement proceeds . . . do not address
conduct by defendants while they were acting on behalf of
plaintiff or the class. Defendants asserted the lien on their own
behalf, not as attorneys representing clients but as a business
entity seeking payment for its services.” (Finato I, supra,
B281357.) Thus, although plaintiff was defendants’ former
client, defendants’ conduct in seeking a share of plaintiff’s
settlement was not exempt from the protections of section 425.16.
In an effort to distance her allegations regarding fee
collection from the concededly protected conduct of filing the
notice of lien, plaintiff “attempt[ed] to recharacterize defendants’
allegedly wrongful conduct as ‘claiming entitlement’ to 50 percent
of the settlement or ‘s[eeking] more in fees than what they were
entitled to receive.’ ” (Finato I, supra, B281357.) We rejected
this argument: “[T]he complaint is clear that the targeted action
is the filing of the notice of lien, not some abstract claim of
entitlement.” (Ibid.) Similarly, we concluded the allegation that
defendants breached their fiduciary obligation “ ‘to place

9
Plaintiff’s interests above Defendants’ interest in collecting fees’ ”
referred to their lien-related activities “because the complaint
contains no other allegations of fee collection apart from those
activities.” (Ibid.) Further, “[p]laintiff’s allegations of damages
stemming from the lost benefit of the confidential settlement
agreement and the fees and expenses incurred attempting to
enforce that agreement also implicate protected activity, because
plaintiff alleges those damages flowed directly from defendants’
assertion of their lien and their opposition to plaintiff’s motion to
enforce the settlement.” (Ibid.)
Having held that defendants satisfied the first anti-SLAPP
step as to the lien-related allegations, we concluded at the second
step that plaintiff had not shown a probability of prevailing on
those allegations. As to the malpractice cause of action, plaintiff
“cite[d] no authority for the proposition that assertion of a lien,
even an allegedly invalid one, is a breach of duty.” (Finato I,
supra, B281357.) Even assuming, as plaintiff alleged, that
seeking “ ‘unconscionable, duplicative, unearned, and excessive
fees’ ” was a breach of duty, she had provided no evidence that
defendants had done so—as we had discussed when addressing
the intentional interference claims, “the notice of lien filed by
defendants did not state an amount or percentage, but simply
invoked the parties’ fee agreement.” (Ibid.) “It would appear
defendants sought nothing more than what the contract and the
law permit.” (Ibid.)
Applying similar reasoning, we held that plaintiff had not
demonstrated a probability of success as to her allegations that
defendants had breached either a fiduciary duty or the
contingency fee contract by asserting their lien and seeking to
collect fees from plaintiff. Again, plaintiff had failed to identify a

10
duty or contractual provision defendants breached by asserting a
lien or seeking fees, nor had she shown that defendants had
sought anything more than what they were entitled to under the
contingency fee agreement.
We declined to strike plaintiff’s cause of action for
declaratory relief. Although that cause of action sought to
invalidate the lien and defendants’ entitlement to fees, it did not
“seek to impose liability based on defendants’ assertion of their
lien,” and therefore was not subject to the protections of
section 425.16. (Finato I, supra, B281357.)
In the disposition, we affirmed the striking of the two
causes of action for intentional interference. We then identified
allegations in seven paragraphs under the causes of action for
malpractice, breach of fiduciary duty, and breach of contract that
were based on defendants’ protected lien-related conduct, and
modified the trial court’s order to strike those allegations as well.
Our instructions were specific, identifying the paragraphs by
number and quoting or citing the exact language to be struck. 5
As modified, we affirmed the trial court’s order.

5 The disposition stated, in relevant part, “The trial court’s
order is modified to grant the special motion to strike the
following claims and allegations in plaintiff’s complaint, in
addition to the fifth and sixth causes of action already struck in
the trial court’s order: (1) in paragraph 55, that ‘all Defendants
sought to collect 50% of the gross amount of a confidential
settlement reached between Plaintiff and her former employer
after Plaintiff, having been abandoned by the Firm, was
compelled to opt out of her own case in order to pursue and
preserve her individual claims’; (2) in paragraph 57,
subparagraphs F and G in their entirety; (3) in paragraph 72,
that had defendants exercised proper skill and care and
comported with the rules of professional conduct, ‘Plaintiff would

11
4. Proceedings on remand
On remand, defendants filed a motion for judgment on the
pleadings as to the causes of action for malpractice, breach of
fiduciary duty, and breach of contract, arguing that Finato I
struck the only allegations that were not time-barred and
“severed the causal nexus between [plaintiff’s] alleged harm
suffered in 2016 and Defendants’ alleged acts of misconduct from
the years 2011–2014.”
The trial court granted the motion with leave to amend “to
resolve the uncertainty and arguable inconsistencies of plaintiff’s
allegations regarding when the acts occurred, when they were

not have lost the benefit of the confidential settlement agreement
reached with the assistance of the state court and in reliance on
the explicit language of the judgment; and Plaintiff would not
have incurred legal fees and expenses defending and seeking to
enforce the confidential settlement agreement reached on
1 July 2015’; (4) in paragraph 76, that defendants breached their
fiduciary obligation ‘to place Plaintiff’s interests above
Defendants’ interest in collecting fees’; (5) in paragraph 77, that
plaintiff suffered damages including ‘the value of her bargain as
reflected in the 1 July 2015 confidential settlement agreement
increased for prejudgment interest’ and ‘the additional legal fees
and expenses defending and seeking to enforce the confidential
settlement agreement reached on 1 July 2015’; (6) in
paragraph 89, that defendants breached the contract of
representation ‘by asserting a contractual non-possessory lien
when no such valid lien had been created through Plaintiff’s
informed consent’ and ‘by seeking recovery of 50% of the gross
proceeds of Plaintiff’s post-termination settlement’; (7) in
paragraph 91, that plaintiff suffered damages including ‘the lost
benefit of [her] 1 July 2015 bargain with her prior employer.’ ”
(Finato I, supra, B281357.)

12
discovered, when Plaintiff suffered injury or damages from each
act, and when Plaintiff and Defendant[s’] relationship officially
ended.” The trial court granted the motion without leave to
amend as to the breach of contract action against individual
defendants Fink and Hernandez, finding they were not parties to
the contingency fee agreement.
Plaintiff filed the FAC on July 8, 2019, asserting causes of
action for malpractice and breach of fiduciary duty against all
defendants, breach of contract against KAF&A, and declaratory
relief. Among other changes, the FAC omitted the specific
language struck in Finato I. Further, paragraph 91 of the FAC
stated that “[t]his complaint does not seek to impose any liability
on the basis of the filing of the . . . notice of lien . . . .”
Defendants then filed a second anti-SLAPP motion directed
specifically at paragraphs 97, 98, 116, 118, 125, 129, 139, and 142
of the FAC. Defendants argued those paragraphs renewed
allegations struck in Finato I. We describe the relevant language
in those paragraphs in our Discussion, post.
The trial court denied the motion. The court found that
defendants “make no effort to establish that Plaintiff’s causes of
action ‘arise from’ . . . protected conduct,” particularly in light of
the disclaimer in paragraph 91 of the FAC that plaintiff no longer
sought to impose liability based on the filing of the notice of lien.
Instead, defendants “simply argue the challenged [paragraphs]
contain allegations that were stricken” in Finato I. The court
ruled that argument “may be grounds for an ordinary motion to
strike under . . . [section] 436, which authorizes a court to strike
out ‘all or any part of any pleading not drawn or filed in
conformity with . . . an order of the court,’ ” but “does not . . .

13
satisfy the showing required to specially strike the subject
allegations under . . . [section] 425.16.”
The trial court also rejected defendants’ contention that the
challenged paragraphs, with the exception of paragraph 139, ran
afoul of Finato I. The court found that the allegations in
paragraphs 97, 98, and 129 were in the original complaint and
left untouched by our disposition in Finato I, and therefore could
not be stricken now. The court further found that paragraphs
116, 118, 125, and 142 alleged unprotected conduct under the
reasoning of Finato I because they did not impose liability based
on defendants’ assertion of their lien, or contained language
similar to unstricken language in the original complaint.
The trial court agreed with defendants that paragraph 139,
which alleged KAF&A violated “the contract of representation” by
“assert[ing] . . . an entitlement to 50% or some other unspecified
‘portion’ ” of plaintiff’s settlement, was precluded by Finato I.
Again, however, the trial court ruled that defendants’ remedy
was through an ordinary motion to strike rather than an anti-
SLAPP motion.
Defendants timely appealed.

DISCUSSION
Defendants argue their anti-SLAPP motion was the proper
procedural vehicle to challenge the renewed allegations in the
FAC, and all of the challenged allegations arose from protected
conduct. We agree with defendants that a new anti-SLAPP
motion is an appropriate method to attack an amended complaint
asserting allegations struck by an earlier anti-SLAPP motion.
We disagree, however, that all of the challenged paragraphs
contain allegations subject to strike under section 425.16. Like

14
the trial court, we conclude that only paragraph 139 runs afoul of
Finato I.

A. Governing Law and Standard of Review
“[T]he anti-SLAPP statute is designed to protect
defendants from meritless lawsuits that might chill the exercise
of their rights to speak and petition on matters of public concern.”
(Wilson v. Cable News Network, Inc. (2019) 7 Cal.5th 871, 883–
884.) “The statute authorizes defendants to file a special motion
to strike in order to expedite the early dismissal of unmeritorious
claims.” (City of Montebello v. Vasquez (2016) 1 Cal.5th 409,
416.)
The anti-SLAPP statute provides, “A cause of action
against a person arising from any act of that person in
furtherance of the person’s right of petition or free speech under
the United States Constitution or the California Constitution in
connection with a public issue shall be subject to a special motion
to strike, unless the court determines that the plaintiff has
established that there is a probability that the plaintiff will
prevail on the claim.” (§ 425.16, subd. (b)(1).) Acts protected
under the statute include, inter alia, “any written or oral
statement or writing made before a . . . judicial proceeding” and
“any written or oral statement or writing made in connection
with an issue under consideration or review by a . . . judicial
body . . . .” (§ 425.16, subd. (e)(1), (2).)
As discussed, anti-SLAPP analysis involves two steps:
“First, the defendant must establish that the challenged claim
arises from activity protected by section 425.16. [Citation.] If the
defendant makes the required showing, the burden shifts to the
plaintiff to demonstrate the merit of the claim by establishing a
probability of success.’ ” (Baral, supra, 1 Cal.5th at p. 384.) An

15
anti-SLAPP motion need not be directed at a cause of action in its
entirety, but “may be used to attack parts of a count as pleaded.”
(Id. at p. 393.) We review the grant or denial of an anti-SLAPP
motion de novo. (Park v. Board of Trustees of California State
University (2017) 2 Cal.5th 1057, 1067.)

B. The Allegations in Paragraph 139 Are Precluded by
Finato I
Paragraph 139 of the FAC, which falls under the cause of
action for breach of contract, alleges, “In violation of the contract
of representation and settled California law [KAF&A] asserted
and continue[s] to assert an entitlement to 50% or some other
unspecified ‘portion’ of the gross amount of the non-existent[6]
1 July 2015 confidential settlement despite the following facts:
(1) [KAF&A] had abandoned Plaintiff in order to pursue and
represent interests adverse to Plaintiff; (2) [KAF&A] impaired
Plaintiff’s ability to recover on her individual claims; and
(3) [KAF&A] had already received their portion of the
$420,000.00 (legal fees) and $23,872 (court costs) for work
allegedly completed on Plaintiff’s behalf until 14 May 2014.”
In Finato I, we ordered similar language struck from
paragraph 89 of the original complaint, which alleged that
“Defendants breached the contract of representation . . . by
seeking recovery of 50% of the gross proceeds of Plaintiff’s post-
termination settlement.” We concluded this allegation implicated
protected conduct because “the complaint makes clear that the

6This paragraph refers to plaintiff’s settlement with
LABite as “non-existent” because, as alleged elsewhere in the
FAC, the trial court refused to enforce the settlement after
KAF&A asserted their lien.

16
only way in which defendants sought fees was by filing the notice
of lien and opposing plaintiff’s attempts to enforce the settlement,
both of which plaintiff does not dispute are protected under
section 425.16.” (Finato I, supra, B281357.) We further
concluded the allegation was without merit because “nothing in
the fee agreement prohibit[ed] defendants from collecting fees,
filing a notice of lien, or asserting their right to payment in
opposition to plaintiff’s attempt to enforce a settlement that
excluded them.” (Ibid.)
Finato I is law of the case. Under that doctrine, “ ‘ “the
decision of an appellate court, stating a rule of law necessary to
the decision of the case, conclusively establishes that rule and
makes it determinative of the rights of the same parties in any
subsequent retrial or appeal in the same case.” ’ [Citation.]”
(Sargon Enterprises, Inc. v. University of Southern California
(2013) 215 Cal.App.4th 1495, 1505.) “ ‘This is true even if the
court that issued the opinion becomes convinced in a subsequent
consideration that the former opinion is erroneous. [Citation.]’
[Citation.]” (Nelson v. Tucker Ellis, LLP (2020) 48 Cal.App.5th
827, 837.) “ ‘The doctrine is one of procedure that prevents
parties from seeking reconsideration of an issue already decided
absent some significant change in circumstances.’ [Citation.]”
(Sargon Enterprises, Inc., at p. 1505.) Thus, to the extent the
allegations in paragraph 139 are analogous to those struck in
Finato I, they are precluded by that earlier opinion.
Plaintiff argues the allegations in paragraph 139 do not
implicate protected conduct because the “FAC contains not a
single allegation identifying or seeking to impose liability on
[KAF&A] for their ‘assertion of a lien’ or any act of debt
collection.” She notes the disclaimer in paragraph 91 of the FAC

17
stating, “This complaint does not seek to impose any liability on
the basis of the filing of the 8 September 2015 notice of lien . . . by
Defendants.”
Plaintiff mischaracterizes the FAC, which unquestionably
contains allegations imposing liability based on debt collection.
Paragraph 99, under the cause of action for malpractice, alleges
defendants “fail[ed] to provide competent legal representation”
by, inter alia, “s[eeking] and continu[ing] to seek to collect from
Plaintiff fees [and] a liquidated debt or alleged debt . . . despite
the fact that Plaintiff has received no recovery from LaBite or
any other party in the underlying litigation.” Similarly,
paragraph 140, under the cause of action for breach of
contract, states that “Defendants breached the contract of
representation . . . by seeking to collect a liquidated debt.”
Defendants’ anti-SLAPP motion did not target these paragraphs,
and therefore we express no opinion whether they implicate
protected conduct. They belie, however, plaintiff’s contention
that the FAC does not allege liability based on fee or debt
collection.
Further, despite the disclaimer in paragraph 91, the FAC,
like the original complaint, does not refer to any actions by
defendants to collect fees apart from the assertion of their lien.
We need not decide, however, whether these amended
allegations implicate protected conduct. Assuming arguendo they
do not, this would not save paragraph 139, because “a plaintiff
whose complaint is stricken by a successful anti-SLAPP motion
cannot try again with an amended complaint.” (Dickinson v.
Cosby (2017) 17 Cal.App.5th 655, 676.) “Once the trial court has
determined the speech at issue is constitutionally protected, it
may not grant leave to amend to omit facts to take the claim out

18
of the protection of section 425.16.” (Mobile Medical Services, etc.
v. Rajaram (2015) 241 Cal.App.4th 164, 171.) Allowing an
amendment “once the court finds the prima facie showing has
been met would completely undermine the statute by
providing the pleader a ready escape from section 425.16’s quick
dismissal remedy. Instead of having to show a probability of
success on the merits, the SLAPP plaintiff would be able to go
back to the drawing board with a second opportunity to disguise
the vexatious nature of the suit through more artful pleading.”
(Simmons v. Allstate Ins. Co. (2001) 92 Cal.App.4th 1068, 1073
(Simmons).) Thus, “[t]here is no such thing as granting an anti-
SLAPP motion with leave to amend.” (Dickinson, at p. 676.) Our
striking of the allegations arising from fee collection in Finato I
barred plaintiff from repleading the allegations in an amended
complaint.
Plaintiff raises additional arguments seemingly directed at
Finato I’s conclusion that defendants’ fee collection efforts
constituted protected conduct, including that defendants have
taken no steps to enforce their lien, and the dispute is private
and has no connection to a public issue. Also, as she did in
Finato I, plaintiff raises constitutional arguments challenging the
anti-SLAPP statute, including that defendants’ speech is
“commercial” and therefore cannot override her own right to
petition the courts.
Finato I rejected plaintiff’s constitutional challenges to the
anti-SLAPP regime and held all of her allegations regarding liens
and defendants’ attempts to collect fees from her were subject to
strike under section 425.16. Again, that is law of the case, and
those issues cannot be relitigated here.

19
 Similarly, we reject plaintiff’s arguments that she has
shown a probability of success on the merits of her allegations in
paragraph 139. Plaintiff argues, as she did in Finato I, that
attorneys who abandon clients or commit malpractice cannot
recover fees. As we held in Finato I, assuming arguendo
defendants had no right to recover fees, plaintiff has failed to
identify any authority that merely seeking those fees itself
constitutes a breach of professional, fiduciary, or contractual
duty. Absent a showing that defendants breached the contract of
representation by seeking fees, plaintiff has not shown a
probability of success on the allegations in paragraph 139.

C. A Second Anti-SLAPP Motion Was a Proper Method
to Challenge Paragraph 139
The trial court ruled that defendants’ challenge to
paragraph 139 should have been brought as an ordinary motion
to strike rather than as a second anti-SLAPP motion. The court
wrote that to satisfy the first step of anti-SLAPP analysis,
“Defendants were required to (1) identify the specific causes of
action they believed arose from protected conduct; (2) identify the
purported protected conduct; (3) identify the applicable
subsection of CCP §425.16(e) pursuant to which that conduct was
protected; (4) establish by a preponderance of the evidence that
the conduct was in fact protected and (5) that the cause of action
arose from that protected conduct.” The court found defendants
had not engaged in this analysis, and instead “simply argue[d]
the challenged [paragraphs] contain allegations that were
stricken” in Finato I. The court deemed this inadequate given
the disclaimer in paragraph 91 of the FAC that plaintiff no longer
sought to impose liability based on the filing of the notice of lien:
“In light of Plaintiff’s express denial at [paragraph] 91, it was

20
essential for Defendants clearly [to] demonstrate that specific
causes of action ‘arose’ from protected conduct.”
In other words, the trial court concluded that the
disclaimer in paragraph 91 undercut defendants’ argument that
the paragraphs targeted by their anti-SLAPP motion contained
allegations arising from the filing of defendants’ notice of lien.
Because defendants identified no other conduct alleged in the
FAC that was protected under section 425.16, they could not
prevail on their second anti-SLAPP motion. They could,
however, bring an ordinary motion to strike on the basis that
paragraph 139 contained allegations struck in Finato I, and
therefore was “not drawn or filed in conformity with . . . an order
of the court.” (§ 436, subd. (b).)
Defendants dispute the trial court’s conclusion that their
motion lacked the required analysis. We need not resolve that
question, however, because assuming arguendo defendants did
nothing more than establish the allegations in paragraph 139
were materially identical to allegations struck in Finato I, that
was sufficient to prevail on their anti-SLAPP motion as to that
paragraph.
We concluded in Finato I that plaintiff’s allegations
regarding defendants’ efforts to collect fees from her arose from
protected conduct, namely the filing of the notice of lien. Under
Simmons, Mobile Medical Services, etc., and Dickinson, once we
made that determination, plaintiff could not separate her fee
collection allegations from the protected conduct—our ruling
inextricably linked them. In effect, the protected conduct alleged
in the original complaint remained in the FAC regardless of
plaintiff’s efforts to omit it. The disclaimer in paragraph 91 of
the FAC was nothing more than “artful pleading” (Simmons,

21
supra, 92 Cal.App.4th at p. 1073), and the trial court should have
disregarded it. Viewed in this light, paragraph 139 of the FAC
was equally subject to an anti-SLAPP motion as the analogous
allegations in the original complaint because, under the law of
the case as set forth in Finato I, all of those allegations arose
from protected conduct and plaintiff failed to show a probability
of success as to any claim based on that conduct. 7
Further, requiring defendants to bring an ordinary motion
to strike would deprive them of two key advantages of a special
motion to strike under section 425.16: attorney fees if they
prevailed, and a right to an immediate appeal if the trial court
ruled against them. (§ 425.16, subds. (c), (i).) Simmons
explained that permitting a plaintiff to amend a complaint to
evade an anti-SLAPP challenge would create a “procedural
quagmire” through which “the SLAPP plaintiff will have
succeeded in his goal of delay and distraction and running up the
costs of his opponent. [Citation.] Such a plaintiff would
accomplish indirectly what could not be accomplished directly,
i.e., depleting the defendant’s energy and draining his or her
resources. [Citation.] This would totally frustrate the
Legislature’s objective of providing a quick and inexpensive
method of unmasking and dismissing such suits.” (Simmons,
supra, 92 Cal.App.4th at p. 1074.)
Without the attorney fee and appeal provisions of
section 425.16, defendants, despite having succeeded in striking

7 We note the FAC does not allege defendants took any
further action subsequent to the filing of the original complaint to
collect fees from plaintiff. We therefore have no cause to opine on
whether or how Finato I would apply to such allegations had they
been made.

22
the allegations once, potentially would be left to bear the cost of
striking the allegations a second time, and if the trial court ruled
against them, might not be able to contest the ruling until final
judgment. This also “would totally frustrate” the “quick and
inexpensive method” contemplated under section 425.16.
(Simmons, supra, 92 Cal.App.4th at p. 1074.)
We therefore conclude a second anti-SLAPP motion relying
on the law of the case as articulated in Finato I was an
appropriate procedural vehicle to challenge paragraph 139, and
the trial court should have granted the motion as to that
paragraph.

D. Under Finato I, the Remaining Challenged
Paragraphs Do Not Arise From Protected Conduct
Defendants contend paragraphs 116, 118, 125, and 142 of
the FAC arise from protected conduct, because all allege liability
based on their notice of lien invalidating plaintiff’s settlement of
her individual claims with LABite and depriving her of the value
of her individual claims. They further argue that paragraphs 97,
98, and 129 arise from protected conduct because they “explicitly
target [defendants’] efforts to collect attorney fees owed by
[plaintiff]. Under the law of the case as articulated in Finato I,
we disagree.

1. The allegations in paragraph 116 do not arise
from protected conduct
Paragraph 116 alleges, “After the invalidation of the
confidential settlement agreement[,] Plaintiff has suffered
additional harm and incur[r]ed costs to litigate and pursue her
prejudiced claims without access to the entire litigation file.
Defendants’ withholding of the file severely undermines the

23
ability of Plaintiff to proceed to trial or respond to a motion for
summary judgment, if her motion for default judgment is
denied.”
Defendants argue this paragraph “alleges that [defendants]
caused ‘the invalidation of the confidential settlement
agreement . . . .’ ” This is inaccurate. The paragraph does not
refer to what caused the invalidation of the agreement, nor does
it premise liability upon it. Rather, it premises liability on
defendants’ withholding of plaintiff’s litigation file, an act
unrelated to the filing of their notice of lien. As we held in
Finato I, “[t]he allegations regarding defendants’ failure to
release plaintiff’s file do not address any actions before a judicial
body or that otherwise implicate defendants’ right to petition,
and thus are unprotected under section 425.16.” (Finato I, supra,
B281357.) We are bound by that holding here.

2. The allegations in paragraphs 118, 125, and 142
do not arise from protected conduct
Paragraphs 118, 125, and 142 all refer to plaintiff, as a
result of defendants’ misconduct and breaches, losing the value of
her individual claims and having to incur additional costs to
recover on those claims. Paragraph 118 alleges that, but for
defendants’ malpractice, “Plaintiff would not have lost the right
to pursue her claim for wrongful termination and a
representative claim under PAGA,” “would not have been
impaired in her ability to recover the full value of her claims from
her former employer,” “and would not have had to incur and
continue to incur additional legal fees to correct, remedy and
mitigate the harm caused by Defendants’ negligent and/or
deliberate actions to the detriment to their former client in the
underlying LaBite.com litigation which remains pending.”

24
 Paragraph 125 alleges damages including “(1) the value of
the lost claims for wrongful termination and the representative
claim under PAGA; (2) the loss of the [Business & Professions
Code section 17200] claim and her Labor Code claims; [and]
(3) the cost of the additional litigation in order to recover on her
original claims.” ~(3 CT 571)~
Paragraph 142 alleges damages including “additional costs
of litigation, the additional cost of duplicating and developing
Plaintiff’s claims due to withholding of the litigation file by
Defendants, and the loss of asserted but wrongfully released
claims.”
Defendants argue that the allegations that plaintiff lost the
value of certain claims and incurred costs pursuing them all stem
from the loss of her settlement with LABite following defendants’
assertion of their lien. They analogize the allegations to
allegations struck in Finato I, including that plaintiff “lost the
benefit of the confidential settlement agreement,” “incurred legal
fees and expenses defending and seeking to enforce the
confidential settlement agreement,” and “lost” the “benefit of
[her] 1 July 2015 bargain with her prior employer.” (Finato I,
supra, B281357.)
We note initially that the allegations quoted above in
paragraphs 118, 125, and 142, are identical, or nearly so, to
allegations we declined to strike in Finato I from paragraphs 72,
77, and 91 of the original complaint. That alone is reason to
reject defendants’ challenge here. In hopes of forestalling
additional litigation on the matter, however, we will explain more
specifically why we left those allegations untouched in Finato I.
The original complaint certainly alleged that defendants’
filing of the notice of lien deprived plaintiff of her settlement with

25
LABite, but it separately alleged that plaintiff released or lost the
ability to pursue claims when defendants replaced her as class
representative, filed a new class complaint, and ultimately
settled the class action. At paragraph 57, subparagraph E of the
original complaint, plaintiff alleged “[KAF&A] filed the global
amended [class action] complaint in order to relegate Plaintiff to
the status of absent class member; to release [her] wrongful
termination cause of action; and to impede her ability to recover
damages outside of the Tim Baker [class action] settlement.” At
paragraph 68, the original complaint alleged that defendants
“made the conscious decision to settle the claims of Plaintiff and
the class so as to frustrate and compromise Plaintiff’s individual
claims . . . .” The FAC contains identical allegations at
paragraphs 99, subparagraph F, and 110.
As we held in Finato I, allegations “that defendants settled
the class claims without her consent, abandoned her case,
recruited a class representative with adverse interests, and filed
an amended class complaint removing her as named
representative[,] are based on defendants’ acts on behalf of
plaintiff or the class of which she was a part. Thus, as claims by
a former client arising from the attorneys’ acts on her behalf,
they are not subject to section 425.16.” (Finato I, supra,
B281357.) Under this rationale, plaintiff’s alleged loss of or
impairment in her ability to pursue her claims as a result of the
class action settlement, and her expenditure of funds on
additional litigation to try to recover on those claims, do not arise
from protected activity.
We acknowledge that both the original complaint at
paragraph 70 and the FAC at paragraph 114 allege that “Plaintiff
did not suffer an actual injury and/or appreciable harm as a

26
consequence of [KAF&A’s] negligence until 17 July 2016 when
the trial judge refused to enforce the court-brokered written
settlement agreement [between plaintiff and LABite] and ruled,
contrary to its prior position, that because Plaintiff had opted out
of the Tim Baker settlement agreement she is not ‘a party’ to ‘the
consolidated actions pending’ before’ ” the superior court.” We
do not interpret this allegation solely to implicate the filing of the
notice of lien. Rather, plaintiff alleges that because she opted out
of the class settlement, the trial court ruled she was no longer
party to any actions against LABite, and therefore could not
enforce a settlement of her individual claims either. This alleged
reason to deny enforcement was independent of the filing of the
notice of lien. The cause of plaintiff’s alleged injuries, therefore,
was not only the filing of the notice of lien, but defendants’
alleged malpractice and other breaches that led to her opting out
of the class settlement. As alleged by plaintiff, that injury did not
manifest until the trial court declined to enforce her settlement
with LABite.
Defendants dispute plaintiff’s interpretation of the trial
court’s order denying enforcement of her individual settlement,
and argue that the class action settlement had no impact on
plaintiff’s individual claims. They further argue that plaintiff
has not in fact incurred any additional litigation costs apart from
contesting defendants’ lien. Those arguments go to the merits of
plaintiff’s allegations, not to whether they constitute protected
activity. They are irrelevant to the first step of anti-SLAPP
analysis, and we express no opinion on them.

27
 3. The allegations in paragraphs 97, 98, and 129
do not arise from protected conduct
Defendants identify specific allegations within paragraphs
97, 98, and 129 of the FAC they contend implicate protected
conduct. Paragraph 97 alleges that defendants “abandoned
Plaintiff and her case in order to obtain a lucrative award of
attorney fees.” Paragraph 98 alleges defendants breached their
duties “to place Plaintiff’s interests above [KAF&A’s] in
maximizing fees.” Paragraph 129 alleges KAF&A “simply
abandoned Plaintiff and her case to pursue its share of the
payment of $420,000.00 in guaranteed attorney fees.”
In Finato I, we struck an allegation from paragraph 55 of
the original complaint that “all Defendants sought to collect 50%
of the gross amount of a confidential settlement reached between
Plaintiff and her former employer.” We also struck an allegation
from paragraph 76 that defendants had breached their fiduciary
obligations by failing “to place Plaintiff’s interests above
Defendants’ interest in collecting fees.” Defendants contend the
challenged allegations in paragraphs 97, 98, and 129 of the FAC
similarly refer to their efforts to collect fees from plaintiff, and
are indistinguishable from the stricken language.
The language defendants identify in paragraphs 97, 98 and
129 of the FAC appeared verbatim in paragraphs 55, 56, and 81
of the original complaint, and Finato I did not strike that
language. We are bound by that holding. Again, however, in
hopes of avoiding future disputes, we will explain our reasoning
more specifically.
The original complaint referred to defendants’ seeking
attorney fees in two separate contexts. One was defendants’
efforts to collect fees from plaintiff by asserting a lien against her

28
individual settlement with LABite. The other was defendants’
efforts to obtain attorney fees by settling the class action, which
they allegedly did by removing plaintiff as class representative
and substituting in a new class representative willing to sign the
settlement. Defendants’ efforts to settle the class action were
unrelated to their filing of the notice of lien, and therefore, under
Finato I, did not implicate protected conduct.
The allegations defendants identify in paragraphs 97 and
129 of the FAC, as well as the analogous language in paragraphs
55 and 81 of the original complaint, refer to defendants’ efforts to
obtain fees from the class settlement, not their efforts to collect
fees from plaintiff. Paragraph 97 alleges that defendants’
“abandoned Plaintiff” so they could “obtain a lucrative award of
attorney fees.” The allegation that defendants “abandoned
Plaintiff” refers to their ignoring her objections to the class
settlement and replacing her as class representative. Paragraph
129 is even more explicit, alleging that defendants “abandoned
Plaintiff” in order to obtain “$420,000.00 in guaranteed attorney
fees,” a clear reference to the $420,000 allegedly awarded to class
counsel.
The allegation in paragraph 98 of the FAC and paragraph
56 of the original complaint that defendants breached their
duties “to place Plaintiff’s interests above [KAF&A’s] in
maximizing fees,” could refer to defendants’ efforts to obtain fees
through class settlement, their efforts to collect fees from
plaintiff, or both. In Finato I, we declined to strike allegations
that “could encompass” unprotected conduct, even if they might
also refer to protected conduct. (Finato I, supra, B281357.)
Because the allegation that defendants “maximiz[ed] fees” could

29
encompass unprotected conduct, we left it untouched in Finato I,
and that reasoning applies equally to the FAC.
Defendants argue there is no principled distinction between
the stricken allegation in paragraph 76 of the original complaint
that defendants had failed “to place Plaintiff’s interests above
Defendants’ interest in collecting fees,” and the FAC’s allegation
at paragraph 98 that defendants failed “to place Plaintiff’s
interests above [KAF&A’s] in maximizing fees.” (Italics added.)
The distinction arises in paragraph 55 of the original complaint,
which alleged that “all Defendants sought to collect 50% of the
gross amount of a confidential settlement reached between
Plaintiff and her former employer.” “Collect” as used in
paragraph 55 referred specifically to defendants’ efforts to obtain
additional fees from plaintiff by imposing a lien on her settlement
proceeds. In Finato I, we applied the same meaning to
“collecting” in paragraph 76, and thus interpreted it also to refer
to defendants’ lien-related activities. In other words, paragraph
55 of the original complaint narrowed the scope of the word
“collecting” in paragraph 76 to apply only to protected conduct,
whereas nothing narrowed the scope of the term “maximizing” in
paragraph 56 of the original complaint or paragraph 98 of the
FAC.

E. The Trial Court May Determine Entitlement To And
Amount of Attorney Fees on Appeal
Defendants request that we award them attorney fees and
costs or issue an order permitting defendants to move for such
fees and costs in the trial court. A prevailing defendant on a
special motion to strike is entitled to recover attorney fees and
costs incurred in the trial court and on appeal. (§ 425.16,
subd. (c); Huntingdon Life Sciences, Inc. v. Stop Huntingdon

30
Animal Cruelty USA, Inc. (2005) 129 Cal.App.4th 1228, 1267
(Huntingdon).
Because defendants have obtained only a partial reversal
of the trial court’s order, we exercise our discretion to deny
their request for costs on appeal. (Cal. Rules of Court,
rule 8.278(a)(5).) We express no opinion as to defendants’
entitlement to attorney fees on appeal, which defendants may
seek through an appropriate motion in the trial court.
(Huntingdon, supra, 129 Cal.App.4th at p. 1267 [“ ‘Although this
court has the power to fix attorney fees on appeal, the better
practice is to have the trial court determine such fees.’ ”].) The
trial court shall “consider whether under the circumstances of
this case the defendants are entitled to fees and, if so, the
amount.” (Ibid.)

31
 DISPOSITION
The order denying defendants’ special motion to strike is
reversed as to paragraph 139 of the first amended complaint, and
the trial court is directed to grant the motion as to that
paragraph. The order otherwise is affirmed. The parties shall
bear their own costs on appeal.
CERTIFIED FOR PARTIAL PUBLICATION.

BENDIX, J.

We concur:

ROTHSCHILD, P. J.

CRANDALL, J. *

* Judge of the San Luis Obispo County Superior Court,
assigned by the Chief Justice pursuant to article VI, section 6 of
the California Constitution.

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