Filed 6/23/26 Palacios v. Sayer CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION THREE
JOEL PALACIOS,
Cross-Complainant and G065401
Respondent,
(Super. Ct. No. 30-2023-
v. 01307035)
MICHAEL SAYER, OPINION
Cross-Defendant and Appellant.
Appeal from an order of the Superior Court of Orange County,
Andre Manssourian, Judge. Affirmed.
Michael Sayer, in pro. per., for Cross-Defendant and Appellant.
Javier Garibay for Cross-Complainant and Respondent.
Cross-defendant and appellant Michael Sayer appeals from an
order denying his special motion to strike under Code of Civil Procedure
1
section 425.16 (anti-SLAPP motion). Sayer, who is an attorney representing
plaintiffs in the current action, was named as a cross-defendant in the cross-
complaint filed by cross-complainant and respondent Joel Palacios. We
conclude Sayer failed to meet his burden at the first step of the anti-SLAPP
inquiry, and we therefore affirm.
FACTUAL AND PROCEDURAL BACKGROUND
In February 2023, plaintiffs Dr. Neeraj Gupta, Dr. Neil Soni, Dr.
Ali Mesiwala,2 Doctors Surgery Center, LLC (Doctors Surgery Center),
Integrity Interpreting & Associates, Inc. (Integrity Interpreting), and Guy
Morrison (collectively, plaintiffs) filed a complaint against Palacios in the
current action. Plaintiffs filed an amended complaint in February 2023 and a
second amended complaint in October 2024. Plaintiffs alleged they “provided
medical services to [Palacios] based on written medical liens,” Palacios “was
to pay plaintiffs upon [his] receipt of funds from his personal injury action,”
and Palacios “breached the medical liens . . . by failing to pay plaintiffs for
their medical services.” Sayer represents plaintiffs in this action.
In November 2024, Palacios filed a cross-complaint against
plaintiffs, Diamond Medical Management, LLC (Diamond Medical), and
Sayer. The cross-complaint alleged Palacios had been injured in an
automobile accident in 2012, and after he filed a lawsuit, he obtained a
1
All undesignated statutory references are to the Code of Civil
Procedure.
2
This plaintiff’s last name is sometimes spelled “Messiwala” in
the record on appeal.
2
judgment for $556,758 and the money was placed in the trust account of his
attorney in that lawsuit, Timothy Donahue. Palacios alleged he received
medical treatment from Gupta, Soni, Mesiwala, Morrison, and Doctors
Surgery Center; Diamond Medical “administered the business aspect of” their
medical practices; and Integrity Interpreting provided interpreting services
during his medical appointments. According to the cross-complaint, Palacios
was charged $96,547.73 for their services, which he disputed and refused to
pay.
The cross-complaint asserted that, in March 2019, “Renee Walz-
DBA Diamond Medical Management, and Cross-Defendant Diamond Medical
Management, LLC, on behalf of Cross-Defendants Dr. Neeraj Gupta, Dr. Neil
Soni, Dr. Ali Messiwala, Doctors Surgery Center, LLC, Guy Morrison, and
Integrity Interpreting & Associates Inc., filed a complaint in the Orange
County Superior Court against [Palacios] and [his] attorney at that time,
Attorney Timothy Donahue, for failure to pay the combined amount of
$96,547.73 . . . .”3 The cross-complaint further asserted that, in March 2019,
“Sayer, on behalf of Cross-Defendant Diamond Medical Management, LLC
and Renee Walz-DBA Diamond Medical Management, on the one hand, and
Attorney Timothy Donahue on the other hand, agreed in writing to place the
amount of $96,547.73 into Attorney Michael Sayer’s state bar trust account,”
and it attached a copy of the agreement, which is entitled, “notice of
stipulation regarding disposition of disputed funds” (capitalization omitted)
and appears to have been filed in the underlying litigation in March 2019
(the stipulation). The stipulation stated, “Sayer will provide Donahue with a
3
The cross-complaint also asserted Diamond Medical filed a
second complaint against Palacios in June 2020, which was subsequently
consolidated with the case that had been filed in 2019.
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file stamped copy of this stipulation,” and upon receipt, “Donahue shall pay to
Michael Sayer’s State Bar Trust account the sum of $96,547.73. Said funds
shall be held in trust until Joel Palacios and [Diamond Medical and Renee
Walz-DBA Diamond Medical Management] enter into a written mutual
settlement and release regarding the release of the disputed funds or as may
be ordered by the court in the instant matter.” The stipulation further stated,
“upon receipt of the $96,547.73, [Diamond Medical and Renee Walz-DBA
Diamond Medical Management] by and through their attorney Sayer shall
immediately file a dismissal with prejudice, as to Donahue in exchange for a
waiver of costs,” and “[i]n connection there with [sic], Donahue waives any
and all causes of action against [Diamond Medical and Renee Walz-DBA
Diamond Medical Management] and their counsel Sayer and Debt Recovery
Attorneys, APC.”
According to the cross-complaint, the underlying litigation
proceeded to trial, but it was discovered that Diamond Medical’s entity status
was suspended. The cross-complaint alleged that, in November 2021, the trial
court in that litigation (Judge Nathan Scott) granted a motion for leave to file
a complaint in intervention by plaintiffs and dismissed the complaints by
Diamond Medical and Renee Walz-DBA Diamond Medical Management. It
also alleged, in December 2022, “the complaint in intervention was
voluntarily dismissed without prejudice.”
The cross-complaint alleged the cross-defendants have refused to
release to Palacios the $96,547.73 from Sayer’s trust account, and it sought
either an order directing the $96,547.73 in Sayer’s trust account to be
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released to Palacios or an award of damages in that amount. The cross-
complaint asserted what it labeled as the following eight causes of action:
(1) specific relief under Civil Code section 3367 (first cause of action);
(2) specific performance under Civil Code section 3384 (second cause of
action); (3) possession of personal property pursuant to Code of Civil
Procedure sections 627 and 667 (third cause of action); breach of fiduciary
duty (fourth cause of action); breach of implied warranty of good faith and
fair dealing (fifth cause of action); breach of contract (sixth cause of action);
conversion (seventh cause of action); and constructive trust (eighth cause of
action). Sayer was named as a cross-defendant on each of the causes of
action.
In December 2024, Sayer filed an anti-SLAPP motion,
declaration, request for judicial notice, and exhibits. Sayer’s anti-SLAPP
motion sought “to strike all of the causes of action” in the cross-complaint.
Palacios filed an opposition, declarations from Palacios and his counsel, a
request for judicial notice, and exhibits.
In April 2025, the trial court held a hearing and denied Sayer’s
anti-SLAPP motion. The court stated, “Sayer has not met his initial burden of
showing a prima facie case for relief by submitting evidence showing he made
a statement or took action against Palacios (a) in connection with an issue of
public interest, or (b) in connection with a legislative, executive, or judicial
proceeding, or any other official proceeding authorized by law, even if the
statement does not concern an issue of public interest.” Sayer appeals from
the denial of his anti-SLAPP motion.
4
The cross complaint also sought costs, prejudgment interest,
and punitive damages.
5
DISCUSSION
“The anti-SLAPP statute is ‘designed to protect defendants from
meritless lawsuits that might chill the exercise of their rights to speak and
petition on matters of public concern.’” (Bonni v. St. Joseph Health System
(2021) 11 Cal.5th 995, 1008–1009 (Bonni).) Under section 425.16, subdivision
(b)(1), “[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.” (Ibid.)5
“Litigation of an anti-SLAPP motion involves a two-step process.
First, ‘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.’ [Citation.] Second, for each claim that does arise
from protected activity, the plaintiff must show the claim has ‘at least
“minimal merit.”’ [Citation.] If the plaintiff cannot make this showing, the
court will strike the claim.” (Bonni, supra, 11 Cal.5th at p. 1009.)
“The anti-SLAPP statute identifies four categories of protected
activity.” (Bonni, supra, 11 Cal.5th at p. 1009.) Specifically, “[a]s used in
[section 425.16], ‘act in furtherance of a person’s right of petition or free
speech under the United States or California Constitution in connection with
a public issue’ includes: (1) any written or oral statement or writing made
5
“For purposes of [section 425.16], ‘complaint’ includes ‘cross-
complaint’ and ‘petition,’ ‘plaintiff’ includes ‘cross-complainant’ and
‘petitioner,’ and ‘defendant’ includes ‘cross-defendant’ and ‘respondent.’”
(§ 425.16, subd. (h).)
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before a legislative, executive, or judicial proceeding, or any other official
proceeding authorized by law, (2) any written or oral statement or writing
made in connection with an issue under consideration or review by a
legislative, executive, or judicial body, or any other official proceeding
authorized by law, (3) any written or oral statement or writing made in a
place open to the public or a public forum in connection with an issue of
public interest, or (4) any other conduct in furtherance of the exercise of the
constitutional right of petition or the constitutional right of free speech in
connection with a public issue or an issue of public interest.” (§ 425.16,
subd. (e).)
“In determining whether plaintiffs’ claims arise from protected
activity, ‘the critical consideration is whether the cause of action is based on
the defendant’s protected free speech or petitioning activity.’ [Citation.] ‘At
this first step, courts are to “consider the elements of the challenged claim
and what actions by the defendant supply those elements and consequently
form the basis for liability.” [Citation.] The defendant’s burden is to identify
what acts each challenged claim rests on and to show how those acts are
protected under a statutorily defined category of protected activity.’
[Citation.] ‘We review the parties’ pleadings, declarations, and other
supporting documents at this stage of the analysis only “to determine what
conduct is actually being challenged, not to determine whether the conduct is
actionable.”’” (Mary’s Kitchen v. City of Orange (2023) 96 Cal.App.5th 1009,
1015.) “We conduct a de novo review of a trial court’s order denying an anti-
SLAPP motion. [Citation.] We therefore analyze the issues independent of
the trial court’s reasoning. [Citation.] ‘If the trial court’s decision is correct on
any theory . . . , we affirm the order regardless of the correctness of the
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grounds on which the lower court reached its conclusion.’” (Gaynor v. Bulen
(2018) 19 Cal.App.5th 864, 876.)
On appeal, Sayer argues “the cross-complaint is subject to
[s]ection 425.16 because the cross-complaint arose directly from Sayer’s
protected petitioning activity, i.e., Sayer’s use of the court system to
represent the Plaintiffs.” Sayer notes he has represented plaintiffs in
numerous litigation events, including filing complaints against Palacios, and
6
asserts that is protected speech or petitioning. Sayer further asserts the
“cross-complaint alleges causes of action arising from Sayer’s act of filing the
complaint, executing the stipulation, and refusing to release the disputed
funds pursuant to the stipulation.” According to Sayer, “[b]y application each
of the eight causes of action in Palacios[’s] cross-complaint is directly
predicated on Sayer’s protected activity in representing the Plaintiffs,
including the filing of the instant complaint against Palacios, Sayer’s conduct
in drafting the stipulation regarding the disputed funds, Sayer’s agreement
and conduct to take possession of the disputed funds, and Sayer’s conduct in
refusing to release the disputed funds. Each of Sayer’s above-noted protected
6
Sayer appears to be asserting his activities were protected
under section 425.16, subdivisions (e)(1) and (e)(2), because they were
writings or statements made before a judicial proceeding or in connection
with an issue under consideration or review by a judicial body. Sayer has
made no developed argument on appeal that the claims arose from protected
activity under section 425.16, subdivisions (e)(3) or (e)(4)—i.e., “any written
or oral statement or writing made in a place open to the public or a public
forum in connection with an issue of public interest,” or “any other conduct in
furtherance of the exercise of the constitutional right of petition or the
constitutional right of free speech in connection with a public issue or an
issue of public interest.” (§ 425.16, subds. (e)(3) & (e)(4).)
8
activities supplies the elements and thus forms the gravamen for all eight of
the causes of action in Palacios’[s] cross-complaint.”
Sayer has failed to meet his burden on the first step of the anti-
SLAPP inquiry by demonstrating that Palacios’s claims against him arise
from protected activity. As an initial matter, we agree Sayer’s filing of the
complaints and executing the stipulation are protected activity. (See Joslin v.
Third Laguna Hills Mutual (2020) 49 Cal.App.5th 366, 369 [“The filing of a
complaint is a protected activity under the anti-SLAPP statute (the right to
petition)”]; Navellier v. Sletten (2002) 29 Cal.4th 82, 90 [noting the
defendant’s “negotiation and execution of the Release . . . involved
‘statement[s] or writing[s] made in connection with an issue under
consideration or review by a . . . judicial body’” under section 425.16,
subdivision (e)(2)].) But that does not end the inquiry because Sayer must
show Palacios’s claims are based on protected activity. “It is insufficient for
protected activity to be ‘a step leading to some different act for which liability
is asserted’; it must ‘itself [be] the wrong complained of.’” (Wong v. Wong
(2019) 43 Cal.App.5th 358, 365.)
Although Sayer generally asserts on appeal that protected
activities supply elements of Palacios’s claims, he has failed to assert
developed argument regarding how specific factual allegations of protected
activity supply elements of Palacios’s claims. (See Park v. Nazari (2023) 93
Cal.App.5th 1099, 1106 [“As our Supreme Court has repeatedly emphasized,
the moving party bears the burden ‘to identify what acts each challenged
claim rests on and to show how those acts are protected under a statutorily
defined category of protected activity’”]; see also Young v. Midland Funding
LLC (2023) 91 Cal.App.5th 63, 99 [“they make no attempt to align discrete
9
factual allegations made by Young, element-by-element, with the listed
‘derivative’ Rosenthal Act theories of liability”].)
The cross-complaint against Sayer includes allegations regarding
various litigation events, but Sayer has not shown that his filing of the
complaints, execution of the stipulation, or other protected litigation
activities is the alleged wrongdoing that supplies a basis for relief in
Palacios’s cross-complaint. Instead, the alleged wrongdoing in Palacios’s
claims, as framed by the cross-complaint, is Sayer’s alleged failure to release
to Palacios the $96,547.73 that is being held in Sayer’s trust account. Under
these circumstances, the alleged failure by Sayer to release to Palacios the
$96,547.73 held in Sayer’s trust account is not protected activity under the
anti-SLAPP statute.
Old Republic Construction Program Group v. The Boccardo Law
Firm, Inc. (2014) 230 Cal.App.4th 859 (Old Republic), is instructive. In that
case, the defendants were a law firm and its lawyer who represented an
individual in an underlying action. (Id. at p. 862.) The plaintiff was Old
Republic Construction Program Group (Old Republic), which was the
workers’ compensation insurer and had intervened in the underlying action.
(Id. at pp. 862–863.) When the plaintiff and the defendant in the underlying
action settled, Old Republic’s claim to reimbursement was not resolved. (Id.
at p. 863.) The defendant lawyer “and counsel for Old Republic therefore
signed a written stipulation stating ‘that the $100,000.00 settlement
money . . . will be deposited into an interest bearing account’ and that
‘[s]ignatures of both parties will be required to withdraw any money.’” (Ibid.)
Following additional proceedings and events, Old Republic eventually filed a
complaint against the law firm and its lawyer. (Id. at pp. 863–865.) On
appeal from the denial of an anti-SLAPP motion as to some of the causes of
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action, the appellate court affirmed. (Id. at pp. 862, 866.) Notably, the court
stated, “[t]he causes of action at issue here refer to, and may depend on,
defendants’ having entered into the stipulation, which was itself protected
conduct; but they do not assert that there was anything wrongful about that
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conduct.” (Id. at p. 869.) The court explained “there was nothing wrongful
about the stipulation itself; entry into it is not the injurious conduct alleged.
Rather, under those three causes of action Old Republic’s injury arose from
defendants’ withdrawal of the funds that were the subject matter of the
stipulation. That is the conduct by which defendants allegedly breached the
contract between the parties, violated a duty of care, and injured Old
Republic. It is that conduct from which these causes of action must be held to
arise. For purposes of the SLAPP statute, the stipulation must be viewed as
incidental.” (Ibid.)8 The appellate court then concluded the withdrawal of
funds was not protected conduct. (Id. at pp. 870–871.) Here, the alleged
7
The appellate court contrasted this with the trial court’s
granting of the anti-SLAPP motion as to a fraud claim in which “[t]he
underlying wrongful conduct was defendants’ alleged entry into the
stipulation without the intention to be bound by it, thereby inducing Old
Republic to do likewise and depriving it of control over the settlement funds.”
(Old Republic, supra, 230 Cal.App.4th at p. 869.)
8
The appellate court also noted, “[i]f the protected status of an
underlying agreement furnished sufficient ground to invoke the anti-SLAPP
statute against a claim for breach of that agreement, it would follow that
every suit to enforce a settlement agreement would be subject at the
threshold to a SLAPP motion. Such a regime would significantly diminish the
utility of such agreements, reduce the incentive for parties to enter into them,
and thereby magnify the workload on courts, with attendant delay and
expense for those who must resort to them. It follows that merely citing a
settlement agreement as the basis for a duty allegedly breached by the
defendant is not enough, by itself, to bring a cause of action for the breach
within the statute.” (Old Republic, supra, 230 Cal.App.4th at p. 870.)
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wrongful conduct that is the basis for Palacios’s claims is Sayer’s alleged
failure to release to Palacios the $96,547.73 in Sayer’s trust account, not
entering into the stipulation.
Sayer asserts “[i]t is [his] representation of the Doctors and the
filing of the original complaint that caused the disputed funds to be deposited
into [his] trust account, together with the filing of the operative complaint
seeking payment for the Doctors’ services that gives rise to protective
activity. Had Sayer not engaged in the above activity Palacios would not have
had any reason to have filed the cross-complaint seeking the disputed funds.”
Sayer’s argument is unavailing, however, because “the fact a cause of action
‘may have been triggered by protected activity’ [citation], or the ‘fact that
protected activity may lurk in the background—and may explain why the rift
between the parties arose in the first place’ [citation], does not mean the
alleged SLAPP arises from protected activity.” (ValueRock TN Properties,
LLC v. PK II Larwin Square SC LP (2019) 36 Cal.App.5th 1037, 1047.)
Given our conclusion that Sayer has failed to meet his burden on
the first step of the anti-SLAPP analysis, we need not address the second
step of the anti-SLAPP analysis, and we express no view on the merits of
Palacios’s claims against Sayer.9 (See ValueRock TN Properties, LLC v. PK II
Larwin Square SC LP, supra, 36 Cal.App.5th at p. 1050.)
9
In his reply brief on appeal, Sayer argues he is not a trustee and
his “obligation to Palacios is only to safeguard the funds pending a settlement
or court order.” These arguments relate to the merits of Palacios’s claims and
are not relevant to the first step of the anti-SLAPP inquiry. (See Coretronic
Corp. v. Cozen O’Connor (2011) 192 Cal.App.4th 1381, 1388 [“Arguments
about the merits of the claims are irrelevant to the first step of the anti-
SLAPP analysis”].)
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DISPOSITION
The order denying Sayer’s anti-SLAPP motion is affirmed.
Respondent Palacios shall recover his costs on appeal.
GOODING, J.
WE CONCUR:
SANCHEZ, ACTING P. J.
SCHWARM, J.*
*Judge of the Orange County Superior Court, assigned by the Chief Justice
pursuant to article VI, section 6 of the California Constitution.
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