Metropolitan News-Enterprise


Friday, September 17, 2010


Page 1


C.A.: Suit Against Attorney for Serving Subpoena Was SLAPP


By SHERRI M. OKAMOTO, Staff Writer


A Mission Viejo lawyer who subpoenaed the mental health records of his client’s insured in the context of a contractual arbitration of an uninsured motorist claim engaged in protected conduct for purposes of a special motion to strike, the Fourth District Court of Appeal has ruled.

In its decision Wednesday, Div. Three explained that arbitration under Insurance Code Sec. 11580.2 constitutes an “official proceeding authorized by law” within the meaning of Code of Civil Procedure Sec. 425.16(e)(2) and so Orange Superior Court Judge Kazuharu Makino did not err in dismissing Winly Mallard’s claims against attorney Rivers J. Morrell III as a strategic lawsuit against public participation.

Accident Claim

Mallard had purchased an automobile insurance policy from Morrell’s client, the Progressive Choice Insurance Company, and claimed to have been involved in an accident causing her to incur medical expenses exceeding the $5,000 policy limit. She also asserted an uninsured motorist claim since the driver of the other car involved in the accident did not have liability coverage.

In her verified responses to the form interrogatories Morrell propounded on Progressive’s behalf, Mallard asserted that she had difficulty sleeping and suffered “[s]hock” and “[n]ervous anxiety” as a result of the accident.

Morrell subpoenaed Mallard’s mental health records from her health care providers. Although Mallard’s counsel contacted Morrell and asked the subpoenas be withdrawn, Mallard did not file a motion for a protective order or otherwise object to the subpoenas as seeking privileged material. The uninsured motorist claim was eventually submitted to arbitration.

Mallard later filed a complaint alleging claims for invasion of privacy and abuse of process against Morrell and Progressive, based on the subpoenas for her mental health records, but she only served Morrell with the complaint.

Morrell filed a special motion to strike, and Makino ordered the complaint dismissed with prejudice as to both defendants. He also awarded Morrell $13,756.64 in attorney fees and costs.

Applies to Arbitration

On appeal, Mallard contended that Morrell’s conduct was not protected by the anti-SLAPP statute because it occurred in the context of a private contractual arbitration, not an official proceeding authorized by law.

 Writing for the appellate court, Justice Richard D. Fybel concluded that Mallard’s claim was without merit because Insurance Code Sec. 11580.2 mandates contractual arbitration of uninsured motorist claim disputes and specifically authorizes the use of subpoenas and other discovery devices in such proceedings.

Fybel reasoned that arbitration of uninsured motorist claim disputes was an official proceeding required by law since the parties “were statutorily required to give up the right to resolve any such dispute in a court of law, absent an exception to the enforcement of the contractual arbitration provision such as waiver or consolidation of the matter with a pending court action.”

Litigation Privilege

The justice further noted that Mallard had placed her mental health at issue in the resolution of the uninsured motorist claim dispute and that the subject subpoenas were designed to discover information that could support Progressive’s defense by showing her alleged mental health issues were not caused by the car accident. As the subpoenas had some connection or logical relation to the action, Fybel opined that they were protected by the litigation privilege and Mallard therefore had no probability of prevailing on her claims against Morrell.

However, Fybel said Mallard’s claims against Progressive were not properly subject to dismissal based on Morrell’s successful anti-SLAPP motion since the insurer had neither been served in the case nor filed a motion on its own behalf.

Justices Kathleen O’Leary and Raymond J. Ikola joined Fybel in his opinion.

The case is Mallard v. Progressive Choice Insurance Company, 10 S.O.S. 5419.


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