Filed 4/22/22 Miles v. Sedgwick Claims Management Services CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on 

opinions not certified for publication or ordered published, except as specified by rule 8.1115(a). This 

opinion has not been certified for publication or ordered published for purposes of rule 8.1115(a). 

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE

ANDREW JOHN MILES,

Plaintiff and Appellant,

v.

SEDGWICK CLAIMS 

MANAGEMENT SERVICES, 

INC., et al.,

Defendants and Respondents.

B311520

Los Angeles County

Super. Ct. No.

19STCV09427

APPEAL from a judgment of the Superior Court of Los

Angeles County, Jon R. Takasugi, Judge. Affirmed.

Blair & Ramirez, Oscar Ramirez, Matthew P. Blair and 

Kirill Lavinski for Plaintiff and Appellant.

Davis Wright Tremaine, Kelli L. Sager, Dan Laidman and 

Sarah Burns for Defendant and Respondent Sedgwick Claims 

Management Services, Inc.
2

Locke Lord, David A. Solitro and Steven T. Whitmer for 

Defendant and Respondent California Insurance Guarantee

Association.

_______________________________________

INTRODUCTION

This is a defamation action related to a workers’ 

compensation case. Plaintiff and appellant Andrew John Miles 

(plaintiff) is a chiropractor who treated an injured worker. 

Defendants and respondents are California Insurance Guarantee 

Association (CIGA) and Sedgwick Claims Management Services, 

Inc. (Sedgwick) (collectively, defendants), the workers’ 

compensation insurer1 and third-party claims administrator, 

respectively. Plaintiff sued CIGA and Sedgwick for defamation 

after Sedgwick sent two letters to the injured worker (as well as 

counsel for the worker and for CIGA) falsely stating that plaintiff

had been indicted for fraud or misuse of Medicare, Medi-Cal, or 

the workers’ compensation system.

Defendants admitted the statements about plaintiff’s 

indictment were false but asserted the statements were 

privileged. Defendants moved for summary judgment under Civil 

Code2 section 47, subdivision (c) (section 47(c)), which extends a 

conditional privilege against defamation to statements made 

without malice on subjects of mutual interest. Here, defendants 

1 CIGA is an association created by California law that is responsible 

for paying a portion of the insurance claims from companies that have 

become insolvent.

2 All undesignated statutory references are to the Civil Code.
3

argued, the letters related to a matter of common interest,

namely, ensuring that medical treatment provided to the injured 

worker would be covered under the workers’ compensation 

insurance policy. Further, defendants explained, plaintiff’s name

inadvertently appeared in the letters due to a miscommunication 

between two Sedgwick employees. In response, plaintiff argued 

that the letters did not relate to any common interest because the 

senders and recipients were in an adversarial posture and, 

further, that Sedgwick’s actions after it was alerted to the error 

created a triable issue of material fact as to whether the 

employees acted with a reckless disregard of plaintiff’s rights.

The court agreed with defendants and granted their 

motions for summary judgment. We affirm.

FACTS AND PROCEDURAL BACKGROUND

1. General Background

An injured worker (the worker) filed a workers’ 

compensation claim in April 2015. After the employer’s workers’

compensation carrier became insolvent, CIGA, an association 

created under state law, became responsible for paying the 

injured worker’s claim. Sedgwick is a third-party claims 

administrator for CIGA and handled the worker’s claim. Plaintiff 

is a chiropractor who treated the injured worker.

The worker also initiated litigation in 2015 and was 

represented in that litigation by Jacobson & Associates (worker’s 

counsel). CIGA was represented in that litigation by Floyd 

Skeren Manukian Langevin, LLP (defense counsel).

2. The Indictment Letter

Sedgwick claims examiner D. Russ was assigned to handle 

the worker’s claim. When she reviewed the claim file, Russ
4

spotted two issues that needed to be resolved. First, Russ noted 

that plaintiff was identified as the worker’s primary treating 

physician. But under Labor Code section 4600, a chiropractor 

may only serve as a primary treating physician under limited 

circumstances. Accordingly, Russ prepared a computerized diary 

entry3 that instructed claims assistant S. Couch to send a letter 

(Labor Code letter) to the worker letting him know that plaintiff 

could not be his primary treating physician and he should select 

a different provider to fill that role. The diary entry specifically 

identified plaintiff as the subject of the letter.

Second, Russ learned that one of the worker’s other medical 

providers, Dr. Rosen, was no longer an approved medical provider 

for CIGA claims because the Department of Industrial Relations 

had included Dr. Rosen on a list of medical providers who had 

been indicted for fraud or abuse of Medicare, Medi-Cal, or the 

workers’ compensation system. After Russ reviewed the 

Department of Industrial Relations website, she created a 

computerized diary entry instructing Couch to send several form

letters to the worker, including one notifying the worker of the 

indictment issue (indictment letter) and another instructing him 

to select a new provider (follow-up letter). Although Russ 

intended for the indictment letter to refer to Dr. Rosen, the diary 

entry she created did not mention Dr. Rosen by name or 

otherwise identify the provider at issue. Dr. Rosen and plaintiff 

shared an office suite.

Couch received the two diary entries created by Russ and 

assumed both entries related to plaintiff. Accordingly, she 

3 Russ used computerized entries, called “diary entries,” to assign tasks 

to a claims assistant for handling.
5

prepared the indictment letter and a follow-up letter (collectively, 

the two false letters) stating incorrectly that plaintiff (not Dr. 

Rosen) was listed on the website of the Department of Industrial 

Relations as a provider who had been indicted for fraud or abuse 

of Medicare, Medi-Cal, or the workers’ compensation system and 

that the worker would need to choose a new medical provider. 

Couch believed the information contained in the two false letters

was correct when she prepared and sent them. Couch sent the 

two false letters to the worker with copies to the worker’s 

counsel, defense counsel, and plaintiff. Couch also prepared the 

Labor Code letter and sent it to the same recipients. All these

letters were dated March 30, 2018.

Plaintiff received a copy of the indictment letter.4 On 

April 10, 2018, plaintiff called Russ to discuss the error in the 

indictment letter. Russ and Couch took several actions later that 

day to correct the mistake. They attempted to fax plaintiff a 

letter of apology, but the fax number they used was incorrect. 

Russ also attempted to call worker’s counsel to correct the 

information in the two false letters. When Russ was unable to 

reach worker’s counsel, she called defense counsel and asked the 

firm to convey the correct information to worker’s counsel. 

Finally, Russ directed Couch to prepare and send a revised 

indictment letter and revised follow-up letter correctly naming 

Dr. Rosen as the provider listed on the website of the Department 

of Industrial Relations. These letters were dated April 10, 2018.

4 Plaintiff testified that he received the indictment letter from the 

worker, not Sedgwick.
6

3. The Complaint

In March 2019, plaintiff filed the present action against 

Sedgwick and CIGA. The complaint contains three causes of 

action: defamation, intentional interference with prospective 

business relations, and negligent interference with prospective 

business relations.5

Regarding the defamation claim, plaintiff generally alleged 

that prior to April 2018, he enjoyed a “very good professional 

reputation” that allowed him to establish “numerous financially 

rewarding relationships with patients, attorneys, and other 

medical professionals.” But, he alleged, Sedgwick sent the 

indictment letter to “several” of his patients6 and the content of 

the indictment letter was subsequently disseminated to many 

members of the community including patients, attorneys, and 

other medical professionals. Consequently, those lucrative 

relationships soured, and his practice experienced a significant 

drop in patients. He claimed Sedgwick “tarnished and 

5 Because plaintiff has not addressed the court’s summary adjudication 

of the second and third causes of action, he has forfeited those issues 

on appeal. (See, e.g., Tiernan v. Trustees of Cal. State University & 

Colleges (1982) 33 Cal.3d 211, 216, fn. 4 [issue not raised on appeal 

deemed forfeited or waived]; Wall Street Network, Ltd. v. New York 

Times Co. (2008) 164 Cal.App.4th 1171, 1177–1178 [“[g]enerally, 

appellants forfeit or abandon contentions of error regarding the 

dismissal of a cause of action by failing to raise or address the 

contentions in their briefs on appeal”]; Paulus v. Bob Lynch Ford, Inc.

(2006) 139 Cal.App.4th 659, 685 [“[c]ourts will ordinarily treat the 

appellant’s failure to raise an issue in his or her opening brief as a 

waiver of that challenge”].) 

6 Plaintiff later testified that the only person he knew received the 

indictment letter was the worker.
7

irreversibly damaged [his] reputation as a result of its 

maliciously made false statements.”

Plaintiff identified as false Sedgwick’s statement in the two 

false letters that plaintiff was listed on the Department of 

Industrial Relations website as a provider who had been 

criminally indicted for fraud or abuse of Medicare, Medi-Cal, or 

the workers’ compensation system. He further asserted that 

Sedgwick was acting as an agent of CIGA when it made the false 

statements and that the statements were not privileged. Finally, 

he contended that defendants made the false statements knowing 

that no investigation supported the statements and therefore the 

statements were so knowingly reckless as to be malicious.

Plaintiff sought general, special, and punitive damages.

4. Summary Judgment

4.1. Defendants’ Arguments

Both Sedgwick and CIGA filed motions for summary 

judgment and/or summary adjudication of each of plaintiff’s three 

causes of action. Defendants conceded the statements at issue 

were false but asserted three affirmative defenses: the litigation 

privilege (§ 47, subd. (b)), the common-interest privilege (section 

47(c)), and the limited liability provided to CIGA and its agents 

under Insurance Code sections 1063.12 and 1063.2.

7

7 Because we resolve this matter on the basis of the common interest 

privilege, we do not discuss either the parties’ or the court’s analysis 

regarding defendants’ other defenses.
8

With respect to the common-interest privilege,8 defendants

argued that the communication was privileged because the 

drafter and recipients of the letters shared a common interest in 

the worker’s claim and in the insurance eligibility of the medical 

providers and treatment the worker received. As for malice, 

defendants explained the false statements were inadvertent and 

therefore not malicious. Specifically, the two false letters were 

prepared by Couch at Russ’s direction. Russ had intended for the 

letters to refer to Dr. Rosen, not plaintiff. But the computerized 

diary entry directing Couch to prepare the letters did not identify 

Dr. Rosen. Consequently, Couch had assumed the entry related 

to plaintiff because Russ had instructed her to send the Labor 

Code letter regarding plaintiff at the same time.

4.2. Plaintiff’s Arguments

In opposition to the motions for summary judgment and/or 

adjudication, plaintiff argued the common-interest privilege did 

not apply. First, plaintiff contended that the parties to the letter 

did not have any mutual interest. He argued defendants had not 

shown any evidence of a contractual relationship between 

themselves and either plaintiff or the worker. Further, plaintiff 

urged, Sedgwick and the worker did not share a mutual interest 

because they were in an adversarial relationship. Moreover, the 

parties had no common interest in false information about 

plaintiff. Finally, and in any event, plaintiff asserted that the 

privilege did not apply because the statements were made

maliciously or in reckless disregard of plaintiff’s rights.

8 Section 47(c) extends a conditional privilege against defamation to 

statements made without malice on subjects of mutual interest.
9

4.3. Ruling

After noting that the statements at issue were 

undisputedly false, the court considered whether the parties to 

the letters—CIGA, Sedgwick, the worker, worker’s counsel, and 

defense counsel—shared a mutual interest. The court found that 

the letters concerned a business relationship. CIGA, and 

Sedgwick as its agent, were obligated to reimburse the worker for 

medical treatment covered under the workers’ compensation 

policy at issue. And the purpose of the indictment letter and 

follow-up letter was to ensure that plaintiff continued to receive 

care from medical providers approved by CIGA so that the care 

would be covered under the insurance policy. In sum, the 

communications from CIGA, by Sedgwick as its agent, to the 

worker and worker’s counsel furthered the mutual interest of all 

parties regarding covered medical claims.

As to malice, the court noted that plaintiff relied on three 

actions (or inactions) by Sedgwick to establish a triable issue of 

material fact regarding defendants’ intent: Couch did not 

independently confirm whether plaintiff was on the Department 

of Industrial Relations’ website; Sedgwick did not send a 

retraction letter to the recipients of the two false letters clarifying 

that plaintiff was not on the indictment list; and it was disputed 

whether Sedgwick sent an apology letter to plaintiff. The court 

found that plaintiffs’ evidence did not establish a triable issue 

concerning malice and, instead, the evidence demonstrated 

Sedgwick’s employees were, at worst, negligent in generating the 

two false letters and in failing to adequately correct the 

misstatements contained therein. Because negligent conduct does 

not support an inference of malice, defendants were entitled to a 

judgment in their favor.
10

5. Entry of Judgment and Appeal

The court entered a judgment in favor of defendants on 

January 8, 2021. Plaintiff timely appeals.

DISCUSSION

Plaintiff contends summary judgment was inappropriate 

because he demonstrated triable issues of material fact regarding 

the common-interest privilege, specifically the absence of a 

mutual interest and the existence of malice. We address these 

issues in turn.

1. Scope and Standard of Review

The standard of review is well established. “The purpose of 

the law of summary judgment is to provide courts with a 

mechanism to cut through the parties’ pleadings in order to 

determine whether, despite their allegations, trial is in fact 

necessary to resolve their dispute.” (Aguilar v. Atlantic Richfield 

Co. (2001) 25 Cal.4th 826, 843.) The moving party “bears the 

burden of persuasion that there is no triable issue of material fact 

and that he is entitled to judgment as a matter of law.” (Id. at 

p. 850; Code Civ. Proc., § 437c, subd. (c).) The pleadings 

determine the issues to be addressed by a summary judgment 

motion. (Metromedia, Inc. v. City of San Diego (1980) 26 Cal.3d 

848, 885, reversed on other grounds by Metromedia, Inc. v. City of 

San Diego (1981) 453 U.S. 490; Nieto v. Blue Shield of California 

Life & Health Ins. Co. (2010) 181 Cal.App.4th 60, 74.)

On appeal from a summary judgment, we review the record 

de novo and independently determine whether triable issues of 

material fact exist. (Saelzler v. Advanced Group 400 (2001) 25 

Cal.4th 763, 767; Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 

317, 334.) We resolve any evidentiary doubts or ambiguities in 
11

favor of the party opposing summary judgment. (Saelzler, at 

p. 768.) “In performing an independent review of the granting of 

summary judgment, we conduct the same procedure employed by 

the trial court. We examine (1) the pleadings to determine the 

elements of the claim, (2) the motion to determine if it establishes 

facts justifying judgment in the moving party’s favor, and (3) the 

opposition—assuming movant has met its initial burden—to 

‘decide whether the opposing party has demonstrated the 

existence of a triable, material fact issue.’ ” (Oakland Raiders v. 

National Football League (2005) 131 Cal.App.4th 621, 630.) “We 

need not defer to the trial court and are not bound by the reasons 

in its summary judgment ruling; we review the ruling of the trial 

court, not its rationale.” (Ibid.)

The appellant has the burden to show error, even if the 

appellant did not bear the burden in the trial court, and “ ‘to 

point out the triable issues the appellant claims are present by 

citation to the record and any supporting authority.’ ” (Claudio v. 

Regents of the University of California (2005) 134 Cal.App.4th 

224, 230.) Further, “an appellant must present argument and 

authorities on each point to which error is asserted or else the 

issue is waived.” (Kurinij v. Hanna & Morton (1997) 55 

Cal.App.4th 853, 867.) Matters not properly raised or that lack 

adequate legal discussion will be deemed forfeited. (Keyes v. 

Bowen (2010) 189 Cal.App.4th 647, 655–656.)

2. The court properly granted summary judgment 

because Sedgwick’s false statements are protected 

under the common-interest privilege.

2.1. General Principles

“The tort of defamation ‘involves (a) a publication that is 

(b) false, (c) defamatory, and (d) unprivileged, and that (e) has a 
12

natural tendency to injure or that causes special damage.’ 

[Citation.]” (Taus v. Loftus (2007) 40 Cal.4th 683, 720 (Taus).)

Section 47(c)9 “ ‘extends a conditional privilege against 

defamation to statements made without malice on subjects of 

mutual interests. [Citation.]’ ” (Hui v. Sturbaum (2014) 222 

Cal.App.4th 1109, 1118 (Hui).) The existence of the privilege is 

ordinarily a question of law for the court. (Id., p. 1119.) 

2.2. Mutual Interest

The common-interest privilege is “ ‘ “recognized where the 

communicator and the recipient have a common interest and the 

communication is of a kind reasonably calculated to protect or 

further that interest.” [Citation.] The “interest” must be 

something other than mere general or idle curiosity, such as 

where the parties to the communication share a contractual, 

business or similar relationship or the defendant is protecting his 

own pecuniary interest. [Citation.] Rather, it is restricted to 

“proprietary or narrow private interests.” [Citations.]’ [Citation.]

‘ “One authority explains the statutory interest as follows: (1) The 

‘interest’ applies to a defendant who ‘is protecting his own 

pecuniary or proprietary interest[,]’ (2) The required ‘relation’

between the parties to the communication is a contractual, 

business or similar relationship[,] ... (3) The ‘request’ referred to 

9 As pertinent here, the statute provides, “A privileged publication or 

broadcast is one made: [¶] ... [¶] (c) [i]n a communication, without 

malice, to a person interested therein, (1) by one who is also interested, 

or (2) by one who stands in such a relation to the person interested as 

to afford a reasonable ground for supposing the motive for the 

communication to be innocent, or (3) who is requested by the person 

interested to give the information. ...”
13

must have been in the course of a business or professional 

relationship. [Citation].” [Citation.]’ [Citation.] ... ‘ “The existence 

of the privilege is ordinarily a question of law for the court. 

[Citation.]” ’ [Citation.]” (Hui, supra, 222 Cal.App.4th at 

pp. 1118–1119.)

Plaintiff argues the common-interest privilege does not 

apply because there is no evidence that CIGA and Sedgwick, on 

one hand, and the worker and worker’s counsel, on the other 

hand, have a contractual relationship. Further, plaintiff urges, it 

cannot be said that Sedgwick and the worker and worker’s 

counsel have a business relationship because the relationship is 

“adversarial.” The court found that a business relationship 

existed, and we agree. CIGA, standing in the shoes of the 

worker’s compensation insurer, was obligated to pay for medical 

treatment covered under the workers’ compensation policy. 

Sedgwick administered the worker’s claim. And the two false 

letters from Sedgwick to the worker and worker’s counsel were 

designed to ensure that the worker obtained medical treatment 

from providers approved by CIGA. As the trial court observed, if 

the relationship between these parties is not considered a 

business relationship, “it would be difficult to discern what other 

kind of relationship they do have.”

Plaintiff apparently believes that the pendency of litigation 

renders all aspects of the relationship here to be adversarial—

and therefore outside the scope of the common-interest privilege.

First, although the record indicates litigation was pending, the 

nature of the litigation is unclear. Indeed, we do not know 

whether either CIGA or Sedgwick was sued directly by the 

worker or whether the litigation was initiated against the former, 

now-defunct, workers’ compensation insurer. Second, and in any 
14

event, we are unpersuaded by plaintiff’s contention that a 

business relationship could not exist because litigation was 

pending. With respect to the two false letters, Sedgwick, as 

CIGA’s agent, was attempting to assist the worker in obtaining 

medical care that would be covered under the applicable policy. 

On that issue, all parties to the letter were both interested and 

aligned and the communication, though inaccurate, was designed 

to further that interest.

In strikingly similar circumstances, another court of appeal 

concluded that a common interest existed for purposes of 

section 47(c). In Hui, supra, a chiropractor (Hui) sued an 

insurance company claims investigator for defamation. The 

investigator had reviewed a claim file and discovered that the 

claimants’ attorney, Kim, was being investigated regarding 

fraudulent claims practices. Kim frequently referred patients to 

Hui. The investigator also learned that Hui had prior license 

suspensions and one license revocation resulting from allegations 

of sexual misconduct. She also suspected Hui of improper billing 

practices in the claim at issue. The investigator shared this 

information about Hui with Kim’s assistant during a 

conversation in which the assistant was attempting to settle the 

claim. (Hui, supra, 222 Cal.App.4th at pp. 1112–1113.)

The investigator filed a motion under Code of Civil 

Procedure section 425.16, asserting that her statements to the 

attorney’s assistant fell within the common-interest privilege. In 

opposition, Hui argued that the investigator and her employer, 

the insurance company, did not have a mutual interest with the 

attorney concerning Hui because the attorney would not be 

interested in allegations of sexual misconduct or in assertions 

that they should avoid doing business with Hui. (Hui, supra, 222 
15

Cal.App.4th at p. 1115.) The trial court and the court of appeal 

disagreed with Hui and concluded the claimants’ attorney and 

the insurance company for whom the investigator worked shared 

a common interest. Specifically, the reviewing court noted that 

the insurer and the attorney shared a common interest in 

pursuing legitimate claims and it was, therefore, important for 

the claims investigator to share information about possible 

misconduct by a medical provider used by the attorney’s clients.

(Id., at pp. 1119–1120.) The investigator’s actions also furthered 

the insurer’s pecuniary interest in settling meritorious claims. 

(Ibid.)

The same is true here. As noted, CIGA, Sedgwick as its

agent, the worker, and worker’s counsel all shared a common 

interest in the worker’s legitimate claim and in ensuring the 

worker obtained treatment from approved medical providers.

Plaintiff argues, however, that Hui is distinguishable. He 

asserts that in Hui, the relationship between the claims 

investigator and the lawyer’s assistant “was not purely 

adversarial” because the claims investigator had a direct and 

immediate concern in protecting the insurer’s interest in settling 

meritorious claims and the lawyer directed his assistant to call 

the investigator to settle a claim. We are unpersuaded. In Hui, as 

in the present case, the parties to the communication were 

mutually concerned with legitimate, covered claims and mutually 

interested in avoiding potentially fraudulent conduct.

In short, we conclude the sender and recipients of the two 

false letters shared a common interest within the meaning of 

section 47(c). Plaintiff failed to create a dispute of fact on that 

issue.
16

2.3. Malice

As noted, the common interest privilege applies only if the 

communication was made without malice. (Section 47(c).) “ ‘ “The 

malice necessary to defeat a qualified privilege is ‘actual malice’

which is established by a showing that the publication was 

motivated by hatred or ill will towards the plaintiff or by a 

showing that the defendant lacked reasonable grounds for belief 

in the truth of the publication and therefore acted in reckless 

disregard of the plaintiff’s rights [citations].” ’ ” (Taus, supra, 

40 Cal.4th at p. 721; Noel v. River Hills Wilsons, Inc. (2003) 113 

Cal.App.4th 1363, 1370.) The defendant generally bears the 

initial burden of establishing that the statement in question was 

made on a privileged occasion, and thereafter the burden shifts to 

the plaintiff to establish that the statement was made with 

malice. (Noel, at p. 1370.)

Plaintiff does not contend that CIGA, Sedgwick, or 

Sedgwick’s employees acted with ill will or hatred. Instead, he 

asserts that “Sedgwick’s actions both before and after sending the 

[indictment] letter demonstrate malice[.]” A showing of malice 

may be based on direct or circumstantial evidence. “A defamation 

plaintiff may rely on inferences drawn from circumstantial 

evidence to show actual malice. [Citation.] ‘A failure to 

investigate [fn. omitted] [citation], anger and hostility toward the 

plaintiff [citation], reliance upon sources known to be unreliable 

[citations], or known to be biased against the plaintiff 

[citations]—such factors may, in an appropriate case, indicate 

that the publisher himself had serious doubts regarding the truth 

of his publication.’ ” (Christian Research Institute v. Alnor (2007) 

148 Cal.App.4th 71, 84–85.) But “ ‘[t]he failure to conduct a 

thorough and objective investigation, standing alone, does not 
17

prove actual malice, nor even necessarily raise a triable issue of 

fact on that controversy.’ (Reader’s Digest Assn. v. Superior Court

(1984) 37 Cal.3d 244, 258.) The purposeful avoidance of the truth 

is, however, another matter. ‘ “[I]naction,” i.e., failure to 

investigate, which “was a product of a deliberate decision not to 

acquire knowledge of facts that might confirm the probable 

falsity of [the subject] charges” will support a finding of actual 

malice.’ (Antonovich v. Superior Court (1991) 234 Cal.App.3d 

1041, 1048.)” (King v. U.S. Bank National Assn. (2020) 53 

Cal.App.5th 675, 702–703.) 

The direct evidence—declarations from Russ and Couch—

indicates that the defamatory statements regarding plaintiff 

contained in the indictment letter and the follow-up letter were 

accidental and, at worst, negligent. As noted, claims examiner 

Russ made several diary entries on March 31, 2018, relating to 

the worker’s claim. One entry instructed Couch to send the Labor 

Code letter to the worker letting him know that plaintiff could 

not be his primary treating physician. That diary entry 

specifically identified plaintiff as the subject of the letter. The 

other entry instructed Couch to send several form letters to the 

worker, including one notifying the worker of the indictment 

issue and another instructing him to select a new provider. 

Although Russ intended for the indictment letter to refer to 

Dr. Rosen, the diary entry she created did not mention Dr. Rosen 

by name or otherwise identify the provider at issue. Couch 

received the two diary entries created by Russ at the same time 

and assumed both entries related to plaintiff. This evidence does 

not support a reasonable inference that Russ, Couch, or Sedgwick 

acted willfully or in reckless disregard of plaintiff’s rights. 

Sedgwick’s employees simply made a mistake.
18

Plaintiff relies on circumstantial evidence, mainly 

Sedgwick’s actions after it became aware of its mistake, in an 

effort to create a dispute of material fact regarding malice. 

Primarily, plaintiff asserts that Sedgwick’s attempts to correct its 

mistake after the fact were inadequate. As noted, Russ and 

Couch attempted to fax plaintiff a letter of apology, but the fax 

number they used was incorrect. Russ also attempted to call 

worker’s counsel to correct the information in the two false 

letters. When Russ was unable to reach worker’s counsel, she 

called defense counsel and asked the firm to convey the correct 

information to worker’s counsel. Finally, Russ directed Couch to 

prepare and send a revised indictment letter and revised followup letter correctly naming Dr. Rosen as the provider listed on the 

website of the Department of Industrial Relations. These letters 

were dated April 10, 2018, the same day plaintiff called Russ to 

object to the letter’s content.

Plaintiff suggests that a reasonable jury could find that 

Sedgwick acted with malice because Couch did not check the 

website of the Department of Industrial Relations to confirm that 

plaintiff was listed and she included a list of medical providers, 

not including plaintiff, with the indictment letter. In addition,

Sedgwick did not send a retraction by fax or mail to the recipients 

of the two false letters. We disagree. As we have said, a negligent 

failure to inquire as to the truth of a statement is not, standing 

alone, sufficient to create a triable issue regarding malice. 

Something more is required, such as the willful avoidance of the 

truth. Plaintiff’s evidence does not reasonably support such an 

inference.

Plaintiff also notes that on March 13, 2018, and again on 

March 23, 2018, Sedgwick responded to payment requests from
19

other providers by stating that CIGA was no longer in charge of 

the file. Whatever the reason for Sedgwick’s response to those 

other providers, we are unable to see any reasonable inference of 

malice with regard to plaintiff. 

Finally, plaintiff attempts to suggest that Russ did not call 

defense counsel on April 10, 2018 to correct the two false letters, 

as she stated. He notes that on May 15, 2018, Russ received an 

email from a partner at defense counsel’s office stating 

incorrectly that plaintiff could not be the worker’s primary 

treating doctor due to his indictment. He then asserts that 

because Russ took no action to correct the assertion in the email, 

“[t]his raises a triable issue of fact as to whether Sedgwick ever 

informed [defense counsel], in the first place, that [plaintiff] was 

not on the indicted list.” Plaintiff fails to mention, however, that 

the partner from defense counsel’s office provided a declaration 

confirming that Russ called on April 10, 2018 and relayed the 

corrected information. Given the direct evidence from both Russ 

and the attorney, the attenuated inference advanced by plaintiff 

does not create a dispute of fact as to malice. 

Accordingly, plaintiff failed to create a triable issue of 

material fact sufficient to withstand summary judgment.
20

DISPOSITION

The judgment is affirmed. Respondents Sedgwick Claims

Management Services, Inc. and California Insurance Guarantee 

Association shall recover their costs on appeal.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

LAVIN, Acting P. J.

WE CONCUR:

EGERTON, J.

KIM, J.*

* Judge of the Los Angeles Superior Court, assigned by the Chief 

Justice pursuant to article VI, section 6 of the California Constitution.