Filed 10/22/26 Mercury Ins. Co. v. Aghaei CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
B346787
MERCURY INSURANCE (Los Angeles County
COMPANY et al., Super. Ct. No. 24STCV01469)
Plaintiffs and Respondents,
v.
RAMIN AGHAEI et al.,
Defendants and
Appellants.
APPEAL from order of the Superior Court of the County of
Los Angeles, Maureen Duffy-Lewis, Judge. Affirmed.
Collins + Collins, Brian K. Stewart; Miller Waxler and
Adam A. Ainslie for Defendants and Appellants.
Colman Perkins Law Group, James J. Perkins, and Dat-
Vinh Nguyen, for Plaintiffs and Respondents.
Defendants Ramin Aghaei, Jennifer Tu, Garvey Aghaei
Chiropractic Corporation, and Ramin Aghaei, a Professional
Chiropractic Corporation (collectively, the chiropractors) appeal
from the trial court’s order denying their special motion to strike
the amended complaint filed by plaintiffs Mercury Insurance
Company, Mercury Casualty Insurance Company, and California
Automobile Insurance Company (collectively, Mercury) pursuant
to the anti-SLAPP statute, Code of Civil Procedure
section 425.16.1
Mercury’s causes of action arise from its allegation that
fraudulent patient examination reports and bills prepared by the
chiropractors induced it to pay 543 personal injury claims. The
chiropractors contend they prepared the records to serve as
evidence in their patients’ claims and lawsuits, and therefore, the
records are protected by the anti-SLAPP statute. The
chiropractors fail, however, to meet their initial burden of
showing the records were made in anticipation of litigation
contemplated in good faith and under serious consideration. We
affirm.
FACTUAL AND PROCEDURAL BACKGROUND2
A. Mercury’s Amended Complaint
The following facts are drawn from the amended complaint.
1 “SLAPP” refers to “Strategic Lawsuits Against Public
Participation.” Subsequent undesignated statutory references are to
the Code of Civil Procedure.
2 We do not recite the entire factual and procedural background,
as the parties are familiar with the facts of the case and its history.
(Cal. Stds. Jud. Admin., § 8.1; People v. Garcia (2002) 97 Cal.App.4th
847, 851.)
2
Defendants were chiropractors and their corporations.
Between 2016 and 2024, Mercury paid 543 claims (totaling more
than $1.9 million) that were supported by patient examination
reports and bills prepared by the chiropractors. Mercury listed
the claims in an exhibit to its pleading, providing for each a claim
number, claimant’s name, relevant dates, the billed amount, and
an attorney name.
Mercury alleged the reports evidenced a pattern of
misrepresentations. It provided examples of patient groups who,
despite widely disparate ages, heights, and weights, reportedly
presented identical symptoms, vital sign readings, and pain
levels. According to Mercury, fraud could be inferred because
such correlations were “statistically virtually impossible” in a
patient population of this size.3
As for the bills, in nearly 500 cases, the chiropractors chose
a procedure code indicating the patients presented circumstances
requiring “low complexity decision-making” by the service
provider, a 30- to 44-minute office visit, and an “expanded
problem-focused history.” Mercury alleged this was “statistically
virtually impossible” for a patient population of this size. It
further alleged that the selection of the code was a false
representation that the chiropractors had evaluated each
patient’s family history. Mercury asserted causes of action for
3 For example, 20 patients of different ages and physical statures
were reportedly injured in automobile accidents. Each reportedly had
a blood pressure reading of 120/80, pulse rate of 70, pain upon lung
examination, negative findings for the patient’s eyes, ears, noses and
throat, and “‘3+ tenderness’” at spinal levels C1-7 in the neck and L1-5
in the low back. The same typographical error (describing the patient
as a “‘diver’”) appeared in all of the reports.
3
fraud, conversion, and violation of the unfair competition law
(UCL, Bus. & Prof. Code, § 17200, et seq.).4
B. The Chiropractors’ Anti-SLAPP Motion
The chiropractors moved to strike the entire amended
complaint, arguing that preparation of the reports and bills fell
within the protections of section 425.16, subdivision (e)
(section 425.16(e)).5 They contended the records were prepared
for their patients’ use in personal injury lawsuits against
Mercury’s insureds and were “a necessary part of expected or
ongoing litigation” to “inform the patient and their attorney of
the patient’s injury and damages.”
The chiropractors filed declarations from Aghaei and an
attorney, Donald Dunham. Both described Alex Wong, whose
name appeared on the claim list. Dunham referred Wong to the
chiropractors. Treatment began in July 2022, and when it
concluded a few months later, Aghaei prepared an examination
report and itemized bill, which were sent to Dunham to use in
connection with Wong’s personal injury claim.
Aghaei attached copies of Wong’s report and bill to his
declaration. The report described Wong’s injury, his complaints,
medical and family histories, symptoms, vital signs, examination
4 Mercury’s declaratory and injunctive relief counts are not
independent causes of action and only describe remedies. (Batt v. City
and County of San Francisco (2007) 155 Cal.App.4th 65, 82, overruled
in part in McWilliams v. City of Long Beach (2013) 56 Cal.4th 613,
626.)
5 The anti-SLAPP statute defines protected acts to include any
written or oral statement or writing (1) “made before a . . . judicial
proceeding . . .” or (2) “made in connection with an issue under
consideration or review by a . . . judicial body . . . .” (§ 425.16 (e).)
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results, diagnosis, prognosis, and treatment recommendations.
The bill described the services performed by the chiropractors
and the related charges. The bill concluded by stating, “Please
make check payable to: [the chiropractors’ business name]” and
“Your prompt attention to this matter will be greatly
appreciated.” (Boldface and italics omitted.) Neither document
mentioned litigation, an insurer, or the person believed to be
responsible for Wong’s injury. Dunham made a settlement
demand on Wong’s behalf, which Mercury rejected. In
early 2023, a lawsuit was filed against Mercury’s insured. The
case eventually settled.
The chiropractors presented no similar evidence for the
other 542 claims. Instead, Aghaei generally described his
practice. He attested that most of his patients were referred by
plaintiff-side personal injury attorneys. He stated that many
were unable to pay for their chiropractic treatment. For those
patients represented by counsel, he offered services pursuant to a
medical lien agreement. The agreement “specifically h[eld] the
patient personally responsible for the services and associated
medical bills” but also allowed Aghaei to be compensated from
“funds recovered by the patient in their personal injury claim,”
whether through settlement, judgment, or verdict. After
treatment concluded, Aghaei would prepare a report and
itemized bill and send it to the patient’s attorney. He stated it
was his “understanding based on [his] years of practice and
experience that the reports and bills are utilized by the attorneys
in settlement demands and as supporting evidence of the
patient’s injuries and cost of treatment in the patient’s lawsuit.”
Dunham was named on Mercury’s list as the attorney
associated with more than 50 allegedly fraudulent claims. He
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declared that the chiropractors, after treating one of his clients,
would send him a report and itemized bill “to be utilized in our
settlement demands and as supporting evidence of the client’s
injuries and cost of treatment in the client’s lawsuit.” It was his
“firm’s practice” with Mercury “to issue a settlement demand
prior to filing a lawsuit in hopes of resolving this without
incurring unnecessary costs,” but if the demand were rejected,
the firm would file a personal injury lawsuit against Mercury’s
insured. He acknowledged, however, that “many” of his clients
resolved their personal injury claims against third-party
tortfeasors “prior to filing a lawsuit.” With the exception of
Wong, Dunham did not discuss particular clients or his
interactions with Mercury on their behalf.
Mercury opposed the motion, arguing that the submission
of fraudulent medical reports, bills, and insurance claims was not
protected petitioning activity under the anti-SLAPP statute,
citing People ex rel. Allstate Ins. Co. v. Rubin (2021) 66
Cal.App.5th 493, 501 (Rubin); People ex rel. Fire Ins. Exchange v.
Anapol (2012) 211 Cal.App.4th 809, 814 (Anapol), and People ex
rel. 20th Century Ins. Co. v. Building Permit Consultants, Inc.
(2000) 86 Cal.App.4th 280, 285 (Building Permit Consultants).
The chiropractors filed a reply.
The trial court denied the motion. Citing Rubin, Anapol,
and Business Permit Consultants, it found that “[c]ases on point”
“preclude anti[-]SLAPP motions to fraudulent insurance billing
claims,” and “the submission of purportedly false insurance
claims does not constitute petitioning activity under the anti-
SLAPP statute.” The chiropractors appealed.
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DISCUSSION
A. The Anti-SLAPP Statute
“A cause of action against a person arising from any act of
that person in furtherance of the person’s right of petition or free
speech under the United States Constitution or the California
Constitution in connection with a public issue shall be subject to
a special motion to strike, unless the court determines that the
plaintiff has established that there is a probability that the
plaintiff will prevail on the claim.” (§ 425.16, subd. (b)(1).) “Anti-
SLAPP motions are evaluated through a two-step process.
Initially, the moving defendant bears the burden of establishing
that the challenged allegations or claims ‘aris[e] from’ protected
activity in which the defendant has engaged.” (Park v. Board of
Trustees of California State University (2017) 2 Cal.5th 1057,
1061.) “If the defendant carries its burden, the plaintiff must
then demonstrate its claims have at least ‘minimal merit.’”
(Ibid.)
We review an order granting an anti-SLAPP motion de
novo and employ the same two-step analysis. (Waterford
Property Co. v. County of Orange (2026) 120 Cal.App.5th 530,
538.) We analyze the issues independent of the trial court’s
reasoning, and if the decision is correct on any theory, we affirm
the order regardless of the correctness of the grounds on which
the court reached its conclusion. (White v. Davis (2023) 87
Cal.App.5th 270, 287.)
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B. Step One – The Chiropractors Fail to Demonstrate
That All of Mercury’s Claims Arose From Protected
Activity
The chiropractors argue the trial court erred in making its
step one finding. They assert Mercury’s claims arose from
protected petitioning activity. We disagree.
“At the first anti-SLAPP step, the question is whether a
defendant has met the burden of showing that a plaintiff's ‘claim
arises from protected activity.’” (Nirschl v. Schiller (2023) 91
Cal.App.5th 386, 404 (Nirschl).) In other words, a defendant
must show that protected activity “‘underlies or forms the basis
for the claim.’ [Citation.]” (Ibid.)
Whether a plaintiff’s claim arises from protected activity
depends on the elements of the challenged claim and what
actions by the defendant supply those elements and consequently
form the basis for liability. (Pechkis v. Trustees of California
State University (2026) 119 Cal.App.5th 497, 504 (Pechkis), citing
Bonni v. St. Joseph Health System (2021) 11 Cal.5th 995, 1009
(Bonni).) We consider each claim for relief pled in the complaint,
without being constrained by the way the complaint structures
each cause of action. (Sandoval v. Pali Institute, Inc. (2025) 113
Cal.App.5th 616, 628 (Sandoval).) Identifying the acts that form
the basis of liability “involves looking to the legally required
elements of a cause of action.” (Ibid.) Once identified, each act or
set of acts supplying a basis for relief, of which there may be
several in a single pleaded cause of action, must be examined to
determine whether each act or set of acts is protected. (Ibid.) If a
cause of action is “mixed,” meaning it rests on allegations of
multiple acts, some of which constitute protected activity and
some of which do not, we disregard the unprotected acts and
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reach the second step of the anti-SLAPP analysis only as to the
protected acts. (Ibid., citing Baral v. Schnitt (2016) 1 Cal.5th
376, 396.)
The chiropractors do not apply this analysis. Citing a pre-
Bonni decision,6 they argue the first step analysis merely
requires courts to examine the “‘principal thrust or gravamen of a
plaintiff’s cause of action’” and “‘the allegedly wrongful and
injury-producing conduct that provides’” its foundation.
According to the chiropractors, if they show the conduct
underlying the gravamen of the cause of action is protected, they
meet their step one burden. Our Supreme Court, however,
rejected this approach in favor of the more precise procedure we
have described. (Sandoval, supra, 113 Cal.App.5th at p. 628,
citing Bonni, supra, 11 Cal.5th 995 at pp. 1009–1011.)
Here, Mercury alleged that the chiropractors’ fraudulent
records induced it to pay 543 different claims that were
submitted at different times on behalf of different patients.
These acts furnished the elements of wrongdoing and damages in
the counts for fraud, conversion, and violation of the UCL.
Given the volume of facts supplying a basis for the relief
sought by Mercury, the chiropractors faced an uphill battle when
they requested an order striking the amended complaint in its
entirety and nothing less. (See Park v. Nazari (2023) 93
Cal.App.5th 1099, 1108–1109 [if a defendant wants the court to
“take a surgical approach” and strike less than the entirety of a
complaint, its initial motion must “propose where to make the
incisions”].) If the amended complaint presents any claim for
relief that does not arise from protected activity, the
6 Colyear v. Rolling Hills Community Assn. of Rancho Palos
Verdes (2017) 9 Cal.App.5th 119, 134.
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chiropractors have not carried their step one burden, and the
motion must be denied. (Id. at p. 1108.)
With this in mind, we turn to the chiropractors’ contention
that Mercury’s claims for relief arose from prelitigation conduct
protected by section 425.16(e). They contend their patient
examination reports and bills related to substantive issues in
their patients’ “personal injury lawsuits,” were prepared for
litigation that was contemplated in good faith and under serious
consideration, and were directed to the patients’ attorneys, who
had an interest in the purported litigation.
Though section 425.16(e) has been construed to protect
some prelitigation communications, “courts have also recognized
that expanding anti-SLAPP protection to any statement that
involves potential litigation reaches too far.” (Nirschl, supra, 91
Cal.App.5th at p. 401.) Almost any dispute could potentially lead
to—and so could be argued to be in anticipation of—litigation.
(Ibid.) For this reason, prelitigation communications may
constitute protected activity, but only if they are related to
litigation that is contemplated in good faith and under serious
consideration. (Rubin, supra, 66 Cal.App.5th at p. 499.)
Litigation is not under serious consideration if it is only a
possibility. (Ibid.)
Rubin is instructive. There, the defendant physician was
accused of preparing false and misleading patient reports and
billing statements that were submitted to the plaintiff insurer.
(Rubin, supra, 66 Cal.App.5th at p. 497.) The physician argued
in his anti-SLAPP motion that these records were prepared for,
and used in, personal injury claims and lawsuits against third
party tortfeasors who happened to be insured by the insurer. (Id.
at p. 502.) He argued that his patients were represented by
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attorneys for purposes of litigation, he treated them under
medical lien agreements, and he understood he was authorized to
send the patient’s medical reports to the attorney to be used in an
anticipated or pending personal injury cases. (Id. at p. 497.)
Thus, he contended, he engaged in prelitigation activities
protected under the anti-SLAPP statute. (Ibid.) The trial court
denied the motion.
The appellate court affirmed, observing that “submission of
purportedly false insurance claims ordinarily does not constitute
petitioning activity under the anti-SLAPP statute, unless
circumstances show litigation is more than theoretical and is
‘genuinely contemplated.’” (Rubin, supra, 66 Cal.App.5th at
p. 500, citing Anapol, supra, 211 Cal.App.4th at p. 824.) “‘Thus,
for example, when a cause of action arises from conduct that is a
“necessary prerequisite” to litigation, but will lead to litigation
only if negotiations fail . . . , future litigation is merely theoretical
rather than anticipated and the conduct is therefore not
protected prelitigation activity.’” (Id. at p. 499, quoting Bel Air
Internet, LLC v. Morales (2018) 20 Cal.App.5th 924, 941.)
The physician did not meet his step one burden of showing
his reports or billing statements received the protection of the
anti-SLAPP statute. His compensation agreement acknowledged
that patients might resolve their claims without court action, as
it contemplated payment from “‘“any settlement, judgment, or
verdict.”’” (Rubin, supra, 66 Cal.App.5th at p. 501.) That his
patients retained attorneys to pursue their claims was “‘of no
moment’” because “‘even communications directly from attorneys
were unprotected if they were attempts to resolve claims without
filing suit.’” (Ibid.) Further, the physician relied on his
“‘subjective understanding of the purpose of his reports and
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bills.’” (Ibid.) He offered neither testimony from patients stating
they intended the bills to be used as evidence of damages in
litigation, nor testimony from their attorneys that they referred
clients to the physician only when litigation was necessary to
recover the cost of treatment. (Ibid.) The Rubin court concluded
the physician “failed to provide evidence establishing the written
medical reports or billing statements for his lien patients were
made ‘in anticipation of litigation contemplated in good faith and
under serious consideration.’ [Citation.]” (Id. at p. 502.)
Like the physician in Rubin, the chiropractors fail to show
that future litigation was more than theoretical when they
created the reports and bills. Aghaei’s agreement with lien
patients provided he would be compensated from the funds they
recovered, whether “through settlement, judgment, or verdict.”
(Italics added.) He acknowledged that although the patients had
retained counsel, some resolved their claims without ever
resorting to the courts. Dunham, who claimed to have
represented “thousands” of personal injury clients, made clear
that “many” claims are resolved with an alleged tortfeasor’s
insurer before lawsuits are filed. Aghaei’s “‘subjective
understanding of the purpose of his reports and bills’” when he
created them was insufficient to show litigation was under
serious consideration. (Rubin, supra, 66 Cal.App.5th at p. 501.)
The chiropractors attempt to distinguish Rubin by arguing
that, unlike the physician in that case, they presented an
“example[ ] of actual litigation” filed by a lien patient. The only
evidence of patient litigation concerned Wong’s lawsuit and the
communications preceding it. When Aghaei treated Wong
in 2022, however, there was no lawsuit on file. Indeed, Dunham
attempted to settle Wong’s claim before filing a lawsuit months
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later. As in Rubin, the chiropractors offered neither testimony
from patients stating they intended the bills to be used as
evidence of damages in litigation, nor testimony from their
attorneys that they referred clients to the physician only when
litigation was necessary to recover the cost of treatment.
On this record, we conclude that the chiropractors did not
carry their step one burden to show the anti-SLAPP statute
applies to their alleged activities. We need not reach step two.
DISPOSITION
The trial court’s order denying the chiropractors’ special
motion to strike is affirmed. Mercury shall recover its costs on
appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
MORI, Acting P. J.
We concur:
TAMZARIAN, J.
DAUM, J.
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