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,

Plaintiff and Respondent,

v.

KEITH A. FINK & ASSOCIATES

et al.,

Defendants and Appellants.

 B303978

 (Los Angeles County

 Super. Ct. No. SC126362)

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.
2

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 antiSLAPP (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.
3

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 complaint2

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.)
4

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 
5

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 
6

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.
7

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.
8

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’ lienrelated conduct, which took place after plaintiff had terminated 
9

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 
10

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 
11

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 
12

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.) 
13

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 . . . 
14

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 antiSLAPP 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 
15

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 
16

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 posttermination settlement.” We concluded this allegation implicated 

protected conduct because “the complaint makes clear that the 

6 This 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. 
17

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
18

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 
19

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 antiSLAPP 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.
20

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 
21

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, 
22

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.
23

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 
24

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.” 
25

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 
26

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 
27

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.
28

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 
29

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 
30

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 
31

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.) 
32

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.