HUTTON v. HAFIF

Filed 5/3/07

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FIVE

Story Continued from Part I .

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

Ms. Hutton asserts that the Killingsworth action was illegal as matter of law because its filing and maintenance violated Business and Professions Code section 6094, subdivision (a) which forbids lawsuits predicated on communications to the State Bar. Thus, Ms. Hutton contends she has sustained her burden of proving with particularity a statute, Business and Professions Code section 6094, subdivision (a), was violated by the filing and maintenance of the Killingsworth action. (Soukup v. Law Offices of Herbert Hafif, supra, 39 Cal.4th at p. 287.) Business and Professions Code section 6094, subdivision (a) states, Communications to the disciplinary agency relating to lawyer misconduct or disability or competence, or any communication related to an investigation or proceeding and testimony given in the proceeding are privileged, and no lawsuit predicated thereon may be instituted against any person . . . . (Italics added; see Jacques Interiors v. Petrak (1987) 188 Cal.App.3d 1363, 1372; Stanwyck v. Horne (1983) 146 Cal.App.3d 450, 459-462.) Ms. Hutton argues the Killingsworth action was illegal as a matter of law because in that lawsuit she was sued for reporting Mr. Hafif and his firm to the State Bar.

In order for an underlying action to be illegal as matter of law, its illegality must be conceded by the defendant or conclusively established by the evidence to be so. (Soukup v. Law Offices of Herbert Hafif, supra, 39 Cal.4th at pp. 286-287.) Mr. Hafif and his firm do not concede their filing or maintenance of the Killingsworth action wasillegal. (Flatley v. Mauro, supra, 39 Cal.4th at p. 321; see Chavez v. Mendoza (2001) 94 Cal.App.4th 1083, 1090.) Nor have Mr. Hafif and his firm effectively conceded the illegal nature of the Killingsworth action. (Paul for Council v. Hanyecz, supra, 85 Cal.App.4th at p. 1365; see Yu v. Signet Bank of Virginia (2002) 103 Cal.App.4th 298, 317, fn. 3.) Further, Mr. Hafif and his firm do not concede the existence of any facts that conclusively establish the Killingsworth action was illegal as a matter of law. (Flatley v. Mauro, supra, 39 Cal.4th at pp. 320-321, 328-329.)

Further, Ms. Hutton has failed to conclusively prove by citation to the evidence the Killingsworth action was illegal as matter of law because it violated Business and Professions Code section 6094, subdivision (a). The complaint in the Killingsworthaction alleged: Ms. Hutton, as part of a conspiracy to harm Mr. Hafif and his firm, filed an unjustified civil action against them; one member of the conspiracy wrote a letter to Congress with other former clients; Ms. Hutton caused a newspaper article to be published in which Mr. Hafif and his firm were accused of overcharging for costs; complaints were made to labor commissions and pension boards; Ms. Hutton caused to be publicly republished the content of communications made to the State Bar; and Ms. Hutton and her co-conspirators sought, by presenting a united front, to pressure defendants to reduce the fees and costs owed for their legal services. Among other things, the second amended complaint alleged: Ms. Hutton maliciously pursued the first lawsuit between the parties where she was represented by Mr. Sales and the demurrer dismissal and sanctions order were set aside by Division Two of this appellate district; Ms. Hutton and her coconspirators caused an article to appear in the Orange County Register; Ms. Hutton made complaints to the Federal False Claims Act Information Center which was a source of referrals for Mr. Hafif and his firm; and Ms. Hutton, along with others, caused a newspaper article to state that Mr. Hafif and his firm in litigation would fight, fight, fight but then settle, settle, settle when confronted with risk or the incurring of substantial costs. The foregoing allegations were public statements and not communications to the State Bar within the scope of Business and Professions Code section 6094, subdivision (a). As the Court of Appeal explained in the Killingsworthaction appeal after the special motion to strike was granted, an Orange County newspaper published an article repeating the allegations in Ms. Huttons State Bar complaint. The Court of Appeal explained: The basis for the complaints allegations against [plaintiff] . . . was the newspaper articles. The articles accurately reflected that complaints had been made to the State Bar . . . and the contents of those complaints. (Law Offices of Herbert Hafif v. Soukup, supra, G020977 [at p. 6].) Business and Professions Code section 6094 bars lawsuits predicated on [c]ommunications to a disciplinary agency relating the misconduct or disability or competence . . . of a lawyer. Mr. Hafif and his firm sued Ms. Hutton for allegedly conspiring to harm them by filing a baseless lawsuit against them and publicizing false accusations about them. That she communicated her allegations to the State Bar was not the sole basis for the lawsuit. The filing and maintenance of the Killingsworthactionagainst Ms. Hutton cannot be characterized as illegal as a matter of law because she was not sued solely for complaining to the State Bar. As a result, section 425.18, subdivision (h) did not preclude Mr. Hafif and his firm from moving to strike Ms. Huttons SLAPPback action. (Soukup v. Law Offices of Herbert Hafif, supra, 39 Cal.4th at pp. 268-269, 287-291.)

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

At oral argument, Ms. Hutton relied on the discussion in Flatley v. Mauro, supra, 39 Cal.4th at pages 305-320. In Flatley, an Illinois lawyer sent a letter to a dance producer. The letter, which was reviewed by the producers London and Los Angeles lawyers, threatened to file suit because the dance producer had allegedly raped a woman. The letter and several follow up telephone calls threatened to send press releases to media outlets about the filing of the lawsuit unless the producer paid several million dollars to the woman who allegedly had been raped. (Id. at pp. 307-311.) The producer paid no money but sued the Illinois lawyer for civil extortion, intentional severe emotional distress infliction, and interference with prospective business advantage. (Id. at p. 306.)

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

But it is noteworthy that Flatley did not involve the application of section 425.18, subdivision (h). Unlike this case, Flatley was not a SLAPPback action. (Flatley v. Mauro, supra, 39 Cal.4th at p. p. 317, fn. 7.) Moreover, our Supreme Court found the prelitigation threats in Flatleyinvolved extreme circumstances. (Id. at p. 332, fn. 16.) From the initial settlement demand letter to the last threatening telephone call, the Illinois lawyers engaged in extortionconduct which is not protected by the Federal and State Constitutions. Further, in Soukup, our Supreme Court explained there are different evidentiary burdens in a traditional special motion to strike case and in a SLAPPback action. (Soukup v. Law Offices of Herbert Hafif, supra, 39 Cal.4th at pp. 282-286.) Flatleydid not directly address Ms. Huttons argument that if only a part of the underlying action was unlawful because it violated a statute, Business and Professions Code section 6094, subdivision (a), it was still illegal as a matter of law within the meaning of section 425.18, subdivision (h). Therefore, although pertinent to our discussion, Flatleyis not directly controlling because it did not address Ms. Huttons argument. (Flatley v. Mauro, supra, 39 Cal.4th at p. 320; Nolan v. City of Anaheim (2004) 33 Cal.4th 335, 343.)

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

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

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

As noted previously, Retired Judge Goldstein denied Ms. Huttons summary judgment motion in the Killingsworth action. Thereafter, Retired Judge Thomas granted the special motion to strike in the Killingsworth action. In our unpublished opinion, we held that Retired Judge Goldsteins order denying the summary judgment motion established as matter of law that there was probable cause to file the Killingsworth action.^[1] As set out below in the margin, we relied on several Court of Appeal opinions, Roberts v. Sentry Life Insurance, supra, 76 Cal.App.4th at pages 382-385 and White v. Lieberman, supra, 103 Cal.App.4th at pages 217-218. But we also cited to the following language from Wilson v. Parker, Covert & Chidester, supra, 28 Cal.4th at page 824 , Denial of a defense summary judgment motion on grounds that a triable issues exists . . . while falling short of a determination of the merits, establishes that the plaintiff has substantiated, or can substantiate, the elements of his or her cause of action with evidence that, if believed, would justify a favorable verdict. (Accord Bealmear v. So. Cal. Edison Co., supra, 22 Cal.2d at p. 340.) In Wilson, our Supreme Court held that the merits based denial of a special motion to strike establishes there is probable cause to file a malicious prosecution lawsuit just as does an order denying a summary judgment motion. (Wilson v. Parker, Covert & Chidester, supra, 28 Cal.4th at pp. 815, 821-822.) Ms. Hutton argues the October 2005 amendment to section 425.16, subdivision (b)(3) resulted in a complete abrogation of that part of Wilson v. Parker, Covert & Chidester, supra, 28 Cal.4th at pages 816-826 which holds that the denial of a summary judgment motion in anunderlying lawsuitdemonstrates there was probable cause to commence thataction. As will be noted, the October 2005 amendment to section 425.16, subdivision (b)(3) only legislatively abrogates that part of Wilson opinion which holds the denial of special motion to strike is sufficient to show there was probable cause to file an underlying lawsuit.

As originally introduced on February 22, 2005, Assembly Bill No. 1158 proposed that section 425.16 be amended to add subdivisions, (b)(4) and (d)(2). (Assem. Bill No. 1158 (2005-2006 Reg. Sess.) Feb. 22, 2005, 1. pp. 2-3.) The initially proposed but ultimately rejected proposed amendment to section 425.16, subdivision (b)(4) would have provided, The denial of a defendants special motion to strike or other dispositive motion by the trial court or the affirmance of the trial courts denial of the motion by an intermediate appellate court shall not be deemed to be probable cause for bringing or maintaining the cause of action challenged by the motion if the defendant eventually

prevails under this section. (Assem. Bill No. 1158 (2005-2006 Reg. Sess.) 1, p. 2.) Section 2 of Assembly Bill No. 1158 as amended April 25, 2005, explained the proposed amendments to section 425.16 as follows: It is the intent of the Legislature, in adding paragraph (2) to subdivision (d) of Section 425.16 of the Code of Civil Procedure, to overrule the decision in Soukup v. Stock (2004) 118 Cal.App.4th 1490, petition for review granted 10/20/04, S126864. It is further the intent of the Legislature, in adding paragraph (4) to subdivision (b) of Section 425.16 of the Code of Civil Procedure, to overrule the decision in Wilson v. Parker, Covert & Chidester[, supra,] 28 Cal.4th 811. These decisions misconstrue Section 425.16 of the Code of Civil Procedure by interpreting it in a way that does not protect SLAPP targets. Malicious prosecution actions are generally disfavored because of the danger that they may chill petition and speech activity (Sheldon Appel Co. v. Albert & Oliker (1989) 47 Cal.3d 863, 872-874). However, a SLAPPback suit (malicious prosecution and related claims arising from the dismissal of a SLAPP suit) should instead be a favored action, because it furthers petition and speech rights. (Assem. Bill No. 1158 (2005-2006 Reg. Sess.) Apr. 25, 2005, 2, pp. 5-6.)

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

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

Comment 3 of the Senator Committee on Judiciary analysis further explains: [In Wilson], the Court was asked to construe (b)(3) to bar a trial courts denial of an anti-SLAPP motion from precluding the SLAPP victims bringing of a SLAPPback lawsuit when the victim eventually prevailed on appeal on that motion or prevailed in a later trial. The Court declined and instead ruled that a denial of the anti-SLAAP motion (on the ground that the plaintiffs had established the requisite probability of success) gives a SLAPP filer a probable cause defense in any subsequent malicious prosecution SLAPPback claim. Since one of the critical elements of an action for malicious prosecution is the absence of probable cause for bringing the prior action (Sheldon Appel Co. v. Albert & Oliker (1989) 47 Cal. 3d 863, 874), that determination is fatal to many SLAPP victims who nonetheless prevailed on appeal or at trial, but cannot file a SLAPPback action to recover compensatory damages because of that Wilson ruling. []  While the Court may have been correct in its strict, literal interpretation of the statute, the Court in this instance arguably failed to heed the Legislatures direction to broadly construe the statute to further the legislative intent that the anti-SLAPP procedures be employed to quickly end abusive litigation against protected speech and activity. The clear and indisputable intent of (b)(3) is to not penalize the SLAPP victim for filing a special motion to end the case early, before any real discovery had been done and where the court does not weigh the evidence but simply looks to see if the plaintiff can make a showing of prima facie minimal case. The Courts view at page 826 that the minor effect of its ruling to force a SLAPP victim to choose between filing an anti-SLAPP at the risk of jeopardizing a subsequent malicious prosecution claim or foregoing that special motion to preserve the claim, does not comport with the clear intent of (b)(3) to not penalize the SLAPP victim for filing and losing an anti-SLAPP motion. []  This bill would correct that situation by amending (b)(3) to provide that the denial of the motion has no impact at any later stage of the case or in any subsequent action. This approach avoids the problems posed by the original proposal in AB 1158 in Section 425.16(b)(4) to overturn Wilson and Roberts v. Sentry Life Insurance, (1999) 76 Cal. App.4th 375, in their entirety, which would have affected the law of summary judgment as well as malicious prosecution. This approach also removes the California Defense Counsels (CDC) opposition, which had strongly opposed any change in the Wilson-Roberts line of cases. This approach also addresses the Civil Justice Association of Californias (CJAC) specific objection to the (b)(4) provision, and CJAC has removed its opposition. (Sen. Com. on Judiciary, Analysis of Assem. Bill No. 1158 (2005-2006 Reg. Sess) as amended Aug. 15, 2005 pp. 9-11.)

The Legislature did not intend to completely abrogate Wilson in the manner argued by Ms. Hutton. Indeed, changes in the Senatewere made to Assembly Bill No. 1158 (2005-2006 Reg. Sess.),as it was initially introduced, in order to avoid abrogating the analysis in Wilson about the effect of an order denying summary judgment in an underlying litigation on the probable cause element of a malicious prosecution action. Indeed, section 425.16, subdivision (b)(3) was amended in the Senate to delete the language in the earlier Assembly version of the bill which intended to abrogate not only Wilson but Roberts v. Sentry Life Insurance, supra, 76 Cal.App.4th at pages 382-385. Roberts involved the effect of the denial of a partial summary judgment motion in an underlying federal action on the probable cause element in an ensuing state court malicious prosecution lawsuit. (Ibid.) Moreover, as the language of section 425.16, subdivision (b)(3) shows, the subject of the 2005 amendment to the statute is to avoid a preclusive effect of a finding of probability of success of a cause of action when a special motion to strike has been granted in the early course of the underlying proceedings.

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

E. OTHER CONTENTIONS

The parties raise other contentions. Some of the parties arguments, including those concerning the effect of Crowley v. Katleman (1994) 8 Cal.4th 666, 679, 695, on the present lawsuit and the Killingsworthaction, are deftly disguised efforts to relitigate whether we should have ordered the special motion to strike granted; apart from the 2005 amendment to section 425.16 and the enactment of section 425.18. Insofar as the parties seek reconsideration of the merits of our prior May 11, 2004 unpublished opinion ordering entry of the special motion to strike, apart from the effect of the 2005 amendment to section 425.16 and the enactment of section 425.18, principles of res judicata and law of the case warrant us not reconsidering our prior decision. (People v. Boyer (2006) 38 Cal.4th 412, 441; People v. Whitt (1990) 51 Cal.3d 620, 638.) Other than as we have noted, the law of the case doctrine controls the outcome of this appeal in terms of the merits of plaintiffs case.

IV. Disposition

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

CERTIFIED FOR PUBLICATION

TURNER, P. J.

We concur:

ARMSTRONG, J.

MOSK, J.

Publication Courtesy of San Diego County Legal Resource Directory.

Analysis and review provided by San Diego County Property line attorney.

^[1] Our unpublished opinion stated in part: Judge Goldsteins denial of plaintiffs summary judgment motion in the second lawsuit, the Killingsworth action (in which she was a defendant) on the grounds there were triable issues of material fact established that probable cause existed as a matter of law. (Roberts v. Sentry Life Insurance (1999) 76 Cal.App.4th 375, 382-385; accord White v. Lieberman (2002) 103 Cal.App.4th 210, 217-218; cf. Wilson v. Parker, Covert & Chidester, supra, 28 Cal.4th at pp. 816-826 [trial courts denial of defendants section 425.16 motion to strike established probable cause].) As the Supreme Court explained in Wilson, Denial of a defense summary judgment motion on grounds that a triable issues exists . . . while falling short of a determination of the merits, establishes that the plaintiff has substantiated, or can substantiate, the elements of his or her cause of action with evidence that, if believed, would justify a favorable verdict. (Wilson v. Parker, Covert & Chidester, supra, 28 Cal.4th at p. 824; accord Bealmear v. So. Cal. Edison Co. (1943) 22 Cal.2d 337, 340.) [] Plaintiff contends, but has not established, that the summary judgment denial in the second lawsuit, the Killingsworth action, was obtained by material misrepresentations of fact with respect to her diaries. Plaintiff claims defendants were in possession of her diary entries, on which they relied in opposing that summary judgment motion, only through a court reporters inadvertent error, not by any legitimate means, and in violation of a stipulation among counsel; therefore, defendants authentication of the evidence rested on material misrepresentations of fact. Defendants assert plaintiff was ordered to produce the diaries in the second lawsuit; however, their citation to the record does not support that claim. In any event, the record before us does not support plaintiff's claim. At her deposition in the underlying action, on April 24, 1995, plaintiff said she had prepared summaries of her diary entries--but not the diaries themselves--for the use of her attorney. In addition, there was an indication the summaries reflected communications between plaintiff and her then attorney, Mr. Sales. Counsel agreed the summaries would not be attached as an exhibit to plaintiffs deposition transcript until they had resolved admissibility issues. There is no evidence the diary entries, as opposed to the summaries, were not made at the time of the events recorded therein. Moreover, later, by way of a declaration dated October 5, 1995, plaintiff herself introduced her diary entries as evidence in the second lawsuit, the Killingsworth action. Judge Goldstein subsequently relied on the diaries in denying plaintiffs summary judgment motion in the second lawsuit, the Killingsworth action, on February 6, 1996. On this record, we cannot conclude that the order denying summary judgment in the second lawsuit, the Killingsworth action, was obtained by material misrepresentations of fact. Judge Goldstein, who ruled on the summary judgment motion in the underlying case, made no such finding. []  We are mindful that Judge Thomas granted plaintiffs section 425.16 motion to strike in the second lawsuit, the Killingsworth action, based on the exclusion of the very evidence on which Judge Goldstein had relied in denying her summary judgment motion. Judge Thomass ruling granting the special motion to strike in the second lawsuit, the Killingsworth action, did not undermine the effect of the Judge Goldsteins order denying summary judgment in terms of the probable cause analysis. As the Supreme Court held in Wilson, Claims that have succeeded at a hearing on the merits, even if that result is subsequently reversed by the trial or appellate court, are not so lacking in potential merit that a reasonable attorney or litigant would necessarily have recognized their frivolousness. (Wilson v. Parker, Covert & Chidester, supra, 28 Cal.4th at p. 818; accord, Bealmear v. So. Cal. Edison Co., supra, 22 Cal.2d at p. 340.) As noted above, plaintiff submitted evidence contradicting defendants allegations in an effort to establish evidentiary support for her malicious prosecution claim in this lawsuit. Defendants showing they had probable cause to bring the underlying action, however, defeats that evidence. (Wilson v. Parker, Covert & Chidester, supra, 28 Cal.4th at p. 821; see Paul for Council v. Hanyecz [(2001]) 85 Cal.App.4th [1356,] 1365.) Accordingly, the order denying defendants section 425.16 special motion to strike must be reversed. (Hutton v. Herbert Hafif (May 11, 2004, B162572) [at pp. 8-10], orig. italics.)