Filed 3/10/98

CERTIFIED FOR PUBLICATION

CHANGE IN JUDGMENT

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION TWO

It is ordered that the opinion filed herein on February 13, 1998, be modified in the following particulars:

1. On pages 20-21:

Section "III. CONCLUSION." be deleted and the following inserted in its place:

III. CONCLUSION.

In view of the clear record of undisputed facts, we are as in as good a position as the trial court to determine the probable cause issue, with one exception. It is undisputed that Mrs. Hyatt and her attorneys never had any evidence to support the fraud, conspiracy, malice and punitive damage claims they prosecuted. They admitted this in depositions, on the record in open court, and in responses to requests for admission. This record clearly establishes that the attorneys lacked probable cause, and also establishes that Mrs. Hyatt lacked probable cause unless Mrs. Hyatt can prove a defense of reasonable reliance on advice of counsel.

Dr. Mabie additionally argues that the Third District’s finding in Hyatt v. Mabie, supra, 24 Cal.App.4th 541, 548, that "plaintiff has no legitimate basis for characterizing defendant's actions as unlawful" and that plaintiff had "utterly failed to prove any wrongdoing" constitute the law of the case and collaterally estop Mrs. Hyatt and her attorneys from now claiming that they did have probable cause. "No legitimate basis" does seem necessarily to mean no probable cause, since the terms are essentially synonymous. We need not rely on this ground, however, in view of the unusual clarity in the record.

We hold as a matter of law that, in view of the undisputed facts set forth above, Mrs. Hyatt’s former attorneys had no probable cause to file and prosecute the fraud, conspiracy, malice and punitive damage claims in the underlying lawsuit.

We further hold that, based on the arguments presented on appeal, Mrs. Hyatt herself had no probable cause to sue for fraud, conspiracy, malice and punitive damages.

However, Mrs. Hyatt’s crosscomplaint against her former attorneys suggests that she may be relying upon a defense of advice of counsel (see, e.g., 5 Witkin, Summary of Cal. Law (9th ed. 1988) Torts, § 449, p. 533). Mrs. Hyatt has also petitioned for rehearing on the theory that she is relying on an advice of counsel defense. Although the defense of advice of counsel was not raised in Mrs. Hyatt’s brief on appeal, proof of reasonable reliance on advice of counsel might negate both the lack of probable cause and malice elements of the tort of malicious prosecution. We conclude, therefore, that Mrs. Hyatt should be permitted to attempt to prove this defense after remand. However, unless Mrs. Hyatt can prove reasonable reliance on advice of counsel, the undisputed facts show that she lacked probable cause to file and prosecute the fraud, conspiracy, malice and punitive damages claims against Mrs. Mabie and Dr. Mabie.

2. On page 22:

Section "IV. DISPOSITION." be deleted and the following inserted in its place:

IV. DISPOSITION.

The summary judgment is affirmed as to the claim for malicious prosecution of the claim for cancellation of deed of trust and/or reimbursement. The summary judgment is reversed as to the claim for malicious prosecution of the fraud, conspiracy, malice and punitive damages claims. The cost award against Mrs. Mabie and Dr. Mabie is reversed. Costs are awarded to Mrs. Mabie’s estate and Dr. Mabie on appeal. The matter is remanded for further proceedings consistent with this opinion.

Respondents’ petition for rehearing filed on February 27, 1998 is denied.

This modification does effect a change in the judgment.

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ZEBROWSKI, J. BOREN, P.J NOTT, J.