Modification: People ex rel. Allstate Ins. Co. v. Rubin

THE PEOPLE ex rel. ALLSTATE INSURANCE COMPANY,

Plaintiff and Respondent,

v.

SONNY RUBIN et al.,

Defendants and Appellants.

No. G059446

(Super. Ct. No. 30-2019-01101013)

California Courts of Appeal

Fourth Appellate District

Division Three

Filed July 22, 2021

ORDER MODIFYING OPINION AND DENYING PETITION FOR REHEARING;

NO CHANGE IN JUDGMENT

This court hereby orders that the opinion filed herein on June 28, 2021, be modified as follows:

1. On page 1, third full paragraph, first line, the name "Know Ricksen" is deleted and replaced with "Knox Ricksen."

2. On page 2, second full paragraph, fifth line, delete the word "its" after the word "of" and replace with "his."

3. On page 2, third full paragraph, fourth line, delete the word "its" after the word "show" and replace with "his."

4. On page 2, third full paragraph, fourth line, delete the word "its" after the word "of" and replace with "his."

5. On page 3, second full paragraph, sixth line, delete the word "its" after the word "in" and replace with "his."

6. On page 4, after first full paragraph, add the following new paragraph: In July 2020, Rubin filed a reply. Rubin attached a second declaration in which he averred, in part, "all of the medical reports prepared by me, and the bills prepared by my biller, are provided to the patient and the patient's attorney for use in the patient's pending or anticipated personal injury lawsuit."

7. On page 9, first full paragraph, second line, delete the word "its" after the word "for" and replace with "his."

8. On page 9, third full paragraph, second line, delete the word "[its]" after the word "because" and replace with "[his]."

9. On page 9, last incomplete paragraph, starting with the word "But" delete last two paragraphs and footnote 2, and replace with the following paragraphs:

We disagree. Again, the Anapol court held that the submission of an insurance claim is ordinarily not a protected activity under the anti-SLAPP statute, unless the defendant first establishes that litigation with the insurance company is under serious consideration and is more than theoretical. (Anapol, supra, 211 Cal.App.4th 809.)

Here, it does not matter if Rubin's lien patients were submitting insurance claims with Allstate based on their own coverage policies (first party claims), or if they were submitting insurance claims based on the liability policies of alleged tortfeasors (third party claims). In either case, Rubin failed to establish---as a matter of law---that the subject medical reports and bills were prepared outside of Rubin's usual course of business, and that his lien patients' litigation with Allstate was more than a "'possibility.'" (See Mission Beverage Co. v. Pabst Brewing Co., LLC, supra, 15 Cal.App.5th at p. 703; see also Smith v. Adventist Health System/West, supra, 190 Cal.App.4th at p. 52 [in the first prong of the anti-SLAPP analysis we accept as true the evidence favorable to the plaintiff and evaluate the defendant's evidence to determine if it has defeated that submitted by the plaintiff as a matter of law].) Indeed, Rubin averred "all of the medical reports prepared by me, and the bills prepared by my biller, are provided to the patient and the patient's attorney for use in the patient's pending or anticipated personal injury lawsuit." (Italics added.)

This modification does not change the judgment. The petition for rehearing is DENIED.

MOORE, J.

WE CONCUR:

O'LEARY, P. J.

FYBEL, J.