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Dr. Sonny Rubin is a physician who controls two medical companies (Sonny Rubin, M.D., Inc., and Coastal Spine and Orthopedic Specialists, Inc.).

A portion of Rubin’s practice involves “lien patients” involved in automobile accidents who are referred by attorneys. Lien patients have signed a “medical lien” authorizing their attorney “to pay directly to [Rubin] such sums as may be due and owing . . . and to withhold such sums from any settlement, judgment, or verdict as may be necessary to pay for” the patient’s treatment (this case only involves lien patients).

After providing medical treatment, Rubin prepares medical narrative reports, operative reports, and billing statements to be used in support of claims for insurance benefits under policies of insurance issue by Allstate.

In September 2019, Allstate filed a complaint on behalf of itself and the People of the State of California (qui tam). The complaint pleaded two causes of action: insurance fraud and unfair competition.

Allstate generally alleged Rubin violated the law by: “Presenting or causing to be presented false or fraudulent claims for the payment of a loss of injury under a contract of insurance[.]” (Ins. Code, §1871.7; Pen. Code, §§ 549, 550.) Allstate specifically alleged Rubin recommended unnecessary medical treatments, falsely represented it had treated injuries, engaged in deceptive billing practices, and prepared false invoices for insurance claims. According to Allstate, Rubin “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 Allstate and other insurers.

In March 2020, Rubin filed an anti-SLAPP motion, and argued in his motion to strike that “preparing and providing to the patient’s attorney the necessary documents supporting the medical services provided on a lien, falls within the definition of prelitigation activities” under the anti-SLAPP statute.

The trial court ruled “Rubin has failed to establish that Allstate’s claims arise from protected activity. Accordingly, the Court need not reach step two of the anti-SLAPP analysis and the special motion to strike is denied.” Ruben appealed and the Court of Appeal affirmed the trial court in the published case of The People ex rel. Allstate Insurance Company v Sonny Rubin,

Strategic Lawsuits Against Public Participation (SLAPP suits) are meritless lawsuits designed to punish parties for constitutionally protected activities (free speech or the right to petition). A defendant can seek to strike a SLAPP suit by filing an anti-SLAPP motion. (Code Civ. Proc., § 425.16.) The analysis is two-fold: usually the defendant must first show the lawsuit arises from its protected activities; if so, the plaintiff can defeat the anti-SLAPP motion by showing its lawsuit has merit.

Litigation is not “under [serious] consideration” – and thereby protected activity under the anti-SLAPP statute – if the ligation is merely a “‘possibility.’” (Mission Beverage Co. v. Pabst Brewing Co., LLC (2017) 15 Cal.App.5th 686, 703.)

Here, Rubin failed to show its medical reports and bills were prepared outside of its usual course of business in anticipation of litigation that was “under [serious] consideration.” (Ibid.)

Attorney Matthew J. Smith, on behalf of the Coalition Against Insurance Fraud, requested that the opinion be certified for publication. The Court granted his request.