Court of Appeal:
By a MetNews Staff Writer
A judge properly denied an anti-SLAPP motion filed by a Newport Beach pain specialist accused in a civil action of defrauding insurance companies by trumping up claims for patients referred by plaintiffs’ attorneys, Div. Three of the Fourth District Court of Appeal declared yesterday.
Justice Eileen C. Moore wrote the opinion, which was not certified for publication. Her opinion affirms an order by Orange Superior Court Judge William D. Caster.
Allstate Insurance Company brought suit on its own behalf and on behalf of the state against Dr. Sonny Rubin, Sonny Rubin, M.D. Inc., Coastal Spine and Orthopedic Specialists, Inc., and Newport Institute of Minimally Invasive Surgery. It alleges that they have “engaged in a conspiracy, scheme, or plan to prepare and present false, fraudulent, and/or misleading narrative reports, operative reports, and billing statements...in support of, or in connection with” claims against it and other insurance companies.
The defendants contended in their special motion to strike under Code of Civil Procedure §425.16 that the conduct complained of is protected conduct under the right-to-petition (which includes litigation). They explained that their patients are “currently seeking a personal injury claim and [are] therefore represented by an attorney for the purposes of litigation” and that the preparation of bills and reports therefore constitutes “prelitigation activities.”
“Rubin has failed to provide evidence establishing the written medical reports or billing statements for its lien patients were made ‘in anticipation of litigation contemplated in good faith and under serious consideration.’…Rubin’s preparation of medical reports and bills in support of insurance claims against Allstate were apparently his routine and usual course of business, which may or may not have resulted in litigation….That is, unless negotiations with Allstate failed, or Allstate denied a demand for payment, litigation was simply a possibility, and that ‘possibility’ of litigation does not rise to protected prelitigation activity under the anti-SLAPP statute.”
The case is People x rel. Allstate Insurance v. Rubin, G059446.
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