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Mallard v. Progressive choice Insurance Co.

September 15, 2010


Appeals from orders of the Superior Court of Orange County, Kazuharu Makino, Judge. Affirmed in part and reversed in part. (Super. Ct. No. 30-2009-00118089).

The opinion of the court was delivered by: Fybel, J.




Plaintiff Winly Mallard filed a complaint against Progressive Choice Insurance Company (Progressive) and its attorney Rivers J. Morrell III (collectively referred to as defendants) for invasion of privacy and abuse of process. Mallard's claims were based on defendants' conduct of seeking discovery of her mental health records by subpoenaing third party health care providers, in preparation of Progressive's defense against Mallard's uninsured motorist claim. Mallard served Morrell but not Progressive with service of process, and, in response, Morrell filed an anti-SLAPP*fn1 motion to strike the complaint pursuant to Code of Civil Procedure section 425.16. (All further statutory references are to the Code of Civil Procedure unless otherwise specified.) The trial court granted the anti-SLAPP motion, dismissed the entire complaint against defendants with prejudice, and awarded Morrell attorney fees under section 425.16, subdivision (c).

We affirm the order granting Morrell's anti-SLAPP motion. Insurance Code section 11580.2 requires that automobile insurance policies include a provision whereby the insured and the insurer agree to submit uninsured motorist claim disputes to contractual arbitration and also expressly authorizes the use of subpoenas in connection with such proceedings. We hold the use of subpoenas to conduct discovery in the context of a contractual arbitration of an uninsured motorist claim dispute under the Insurance Code constitutes a writing in connection with "any other official proceeding authorized by law," within the meaning of section 425.16, subdivision (e)(2). Morrell thus met his burden of demonstrating the acts underlying the complaint arose from protected activity. As Mallard failed to meet the burden of establishing a probability of prevailing on the complaint, the trial court did not err by granting the anti-SLAPP motion as to Morrell.

We reverse the trial court's order dismissing Mallard's claims against Progressive, however, because Progressive was never served in the action, did not appear before the trial court, and did not make an anti-SLAPP motion on its own behalf.

We also affirm the trial court's order granting Morrell's motion for attorney fees under section 425.16, subdivision (c). As described in detail post, Mallard failed to show the trial court abused its discretion in awarding mandatory fees under the statute.


Progressive issued an automobile insurance policy to Mallard, which included coverage up to $5,000 for payment of and reimbursement for medical expenses incurred as a result of a motor vehicle accident. During the policy period, on April 29, 2005, Mallard was involved in an automobile accident which Mallard contended caused her to incur medical expenses exceeding $5,000. She asserted an uninsured motorist claim because the driver of the other car involved in the accident did not have liability insurance.

Attorney Morrell was retained by Progressive with regard to Mallard's claim. Morrell propounded form interrogatories to Mallard on Progressive's behalf. In her verified responses to the form interrogatories, Mallard asserted claims of injuries involving her neck, arm, wrists, and back. She also asserted she had difficulty sleeping, and suffered "[s]hock" and "[n]ervous anxiety." In addition, she stated she was pursuing a claim for loss of earning capacity.

As pertinent to the issues on appeal, Mallard's mental health records were subpoenaed from health care providers identified in her verified responses. Mallard's counsel contacted Morrell and requested that Morrell withdraw the subpoenas or he would seek a protective order ex parte. Morrell did not withdraw the subpoenas and Mallard's counsel did not file a motion for a protective order or a motion to quash any of the subpoenas. Mallard did not otherwise object in court to the subpoenas as seeking privileged matter.

Mallard petitioned the trial court "to appoint a fair and impartial arbitrator" to resolve her uninsured motorist claim dispute with Progressive on the ground Insurance Code section 11580.2, subdivision (f) requires that such disputes be resolved by arbitration and the parties had "been unable to agree upon a suitable arbitrator." The trial court appointed an arbitrator.


Mallard filed a complaint alleging claims for invasion of privacy and abuse of process against defendants, based on the act of subpoenaing third parties to obtain Mallard's mental health records. Mallard served only Morrell with the complaint.

Morrell filed an anti-SLAPP motion to strike the complaint, which was opposed by Mallard. The trial court granted the anti-SLAPP motion and ordered the complaint dismissed with ...

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