Opinion
D070251
09-28-2017
SHAHROKH MIRESKANDARI, Plaintiff and Appellant, v. LAURIE GILBERT et al., Defendants and Respondents.
Duckor Spradling Metzger & Wynne, Robert M. Shaughnessy; Esner, Chang & Boyer, Stuart B. Esner, Joseph S. Persoff; Karcher Harmes and Kathryn E. Karcher for Plaintiff and Appellant. Bird, Marella, Boxer, Wolpert, Nessim, Drooks, Lincenberg & Rhow and Thomas V. Reichert for Defendants and Respondents.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 37-2015-00029990-CU-FR-CTL) APPEAL from an order of the Superior Court of San Diego County, Richard E. L. Strauss, Judge. Reversed and remanded with instructions. Duckor Spradling Metzger & Wynne, Robert M. Shaughnessy; Esner, Chang & Boyer, Stuart B. Esner, Joseph S. Persoff; Karcher Harmes and Kathryn E. Karcher for Plaintiff and Appellant. Bird, Marella, Boxer, Wolpert, Nessim, Drooks, Lincenberg & Rhow and Thomas V. Reichert for Defendants and Respondents.
Shahrokh Mireskandari (Plaintiff) sued paralegal Laurie Gilbert and her law firm employer, Bird, Marella, Boxer, Wolpert, Nessim, Drooks, Lincenberg & Rhow, P.C. (Bird, Marella) (together, Defendants) for fraud and unfair competition based on work Gilbert performed for Bird, Marella's British client. The trial court granted Defendants' special motion to strike under California's anti-SLAPP statute, Code of Civil Procedure section 425.16 (section 425.16), after ruling both that Plaintiff's causes of action arose from Defendants' constitutional right of petition in connection with a public issue and that Plaintiff did not demonstrate a probability of prevailing on the claims.
" 'SLAPP' is an acronym for 'strategic lawsuit against public participation.' " (Baral v. Schnitt (2016) 1 Cal.5th 376, 381, fn. 1 (Baral).)
The trial court erred in concluding that Defendants provided their professional services in furtherance of their constitutional right of petition. As we will explain, Bird, Marella's client's potential litigation was going to be filed in England, and "petitioning activity undertaken in a foreign country is not protected by the anti-SLAPP statute." (Guessous v. Chrome Hearts, LLC (2009) 179 Cal.App.4th 1177, 1186 (Guessous).) Accordingly, we will reverse the order granting Defendants' special motion to strike.
I.
UNDERLYING LEGAL STANDARDS
Section 425.16, subdivision (b)(1) provides in full: "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."
In applying this statute, a court generally is required to engage in a two-step process. "First, the defendant must establish that the challenged claim arises from activity protected by section 425.16." (Baral, supra, 1 Cal.5th at p. 384.) "If the defendant makes the required showing, the burden shifts to the plaintiff to demonstrate the merit of the claim by establishing a probability of success." (Ibid.) " 'Only a cause of action that satisfies both prongs of the anti-SLAPP statute — i.e., that arises from protected speech or petitioning and lacks even minimal merit — is a SLAPP, subject to being stricken under the statute.' " (Oasis West Realty, LLC v. Goldman (2011) 51 Cal.4th 811, 820.)
"We review de novo the grant or denial of an anti-SLAPP motion. . . . We exercise independent judgment in determining whether, based on our own review of the record, the challenged claims arise from protected activity. . . . In addition to the pleadings, we may consider affidavits concerning the facts upon which liability is based. . . . We do not, however, weigh the evidence, but accept the plaintiff's submissions as true and consider only whether any contrary evidence from the defendant establishes its entitlement to prevail as a matter of law." (Park v. Board of Trustees of California State University (2017) 2 Cal.5th 1057, 1067, citations omitted (Park).)
II.
FACTUAL AND PROCEDURAL BACKGROUND
We have disregarded statements in the parties' appellate briefs that are not supported by accurate references to the record. (McOwen v. Grossman (2007) 153 Cal.App.4th 937, 947, citing Cal. Rules of Court, rule 8.204(a)(1)(C).)
Because we must "accept [P]laintiff's submissions as true" in deciding the anti-SLAPP issues on appeal (Park, supra, 2 Cal.5th at p. 1067), we will not introduce each factual recitation with a phrase such as "Plaintiff alleges . . ." or "Plaintiff testifies." In doing so, we do not imply the existence of factual findings or substantial evidence in support of factual findings; we present the alleged facts based on pleadings and declarations solely for the purpose of ruling on the legal issues presented in this appeal.
Plaintiff emigrated to the United States in 1981 and became a United States citizen in 1990. He received degrees in this country from National University and the American University of Hawai'i law school. He then attended London Guildhall University Law School in England and completed his courses, exams and solicitor's apprenticeship, qualifying as a solicitor in 2000. By 2006, Plaintiff had become the managing partner of a British firm that employed over 40 solicitors and staff.
Plaintiff's work included challenging racially motivated practices at the Solicitors Regulation Authority (SRA), which is the disciplinary arm of the Law Society of England and Wales (LSE). In retaliation for Plaintiff's efforts in these regards, the LSE and the SRA campaigned to discredit Plaintiff, and the SRA worked to end Plaintiff's career in law. In October 2008, the SRA gave Plaintiff notice of an investigation and twice requested that he provide information regarding his past education and work; in December 2008, following an audit report regarding Plaintiff and his firm, the SRA requested that an adjudication panel of the LSE direct an intervention into Plaintiff's law practice; less than a week later, "the LSE/SRA" intervened in Plaintiff's law practice; in late 2009, the LSE, through the SRA, prosecuted a case against Plaintiff and his firm before an independent statutory tribunal that hears allegations of breaches of the rules and regulations applicable to solicitors and their firms; the trial took place in two three-week hearings — one during the spring of 2011, and one during the spring of 2012; in June 2012, the tribunal ruled that Plaintiff "be struck off the Roll of Solicitors"; this ruling shut down Plaintiff's law practice and the practice of the firm of which Plaintiff had become the managing partner; and Plaintiff lost millions of dollars as a result.
Defendants explained to the trial court — and Plaintiff did not challenge — that the LSE is statutorily responsible for regulating the standards of behavior and professional performance of solicitors (and their firms) who are admitted to the roll of solicitors in England and Wales; that the LSE has delegated this responsibility to the SRA; that the SRA is not a distinct legal entity; and that the SRA, independent of the LSE, has its own governance structure and exercises its statutory powers in individual cases. Without a citation to supporting documentation or objection from Plaintiff, Defendants also told the trial court (and repeated at oral argument on appeal) that Bird, Marella's client — i.e., the SRA — is the British equivalent to the State Bar of California.
Among other outcomes, an intervention results in the closure of the solicitor's law practice.
Our references to "the LSE/SRA" are based on Plaintiff's submissions to the trial court in which Plaintiff did not differentiate between the two entities (including, at times, in identifying Bird, Marella's client).
The parties agree that this is the British equivalent of being disbarred.
As relevant to Defendants, the SRA (or the LSE/SRA; see fn. 5, ante) employed Bird, Marella to achieve the SRA's goal of discrediting Plaintiff and ending his career. To this end, in the month prior to Plaintiff's initial notice of the SRA investigation in late 2008, the LSE/SRA instructed Bird, Marella (in California) "to illegally access" a clearinghouse's Web site "to unlawfully obtain" confidential information regarding Plaintiff's educational records in the United States "as a pretext for intervening in his practice" in England. Pursuant to this retention, Gilbert "lied to access the database," "circumvented the [clearinghouse's] screening and security measures," and "falsely represent[ed] that she had the authority to access [Plaintiff's] education records."
Based on these activities at a time when Gilbert was Bird, Marella's employee and/or agent, Plaintiff sued Defendants for fraud and for unfair business practices (Bus. & Prof. Code, § 17200). Plaintiff contended that Defendants' conduct "supported and fostered the SRA's plan to ruin [Plaintiff's] practice, ruin [Plaintiff's] reputation in the legal community in London, and have [Plaintiff's] name stricken from the roll" — causing him to suffer damages.
Plaintiff also named an additional defendant in five other causes action. Neither that defendant nor those causes of action are before the court in this appeal.
In response to the complaint, Defendants filed a special motion to strike under California's anti-SLAPP statute, section 425.16. As to prong one, Defendants argued that, because their communications were made in connection with an investigation by an attorney at the request of a client for purposes of the client's consideration of initiation of regulatory proceedings, their actions were in furtherance of their constitutional right of petition in connection with a public issue. As to prong two, Defendants argued that, because Plaintiff could not present competent evidence to support his two claims, Plaintiff could not meet his burden of establishing a probability of prevailing on the merits.
Defendants also filed a demurrer, but once the court granted the anti-SLAPP motion, the court took the demurrer off-calendar.
Plaintiff opposed Defendants' motion. As to prong one, Plaintiff responded in part that the anti-SLAPP statute did not apply to his claims, because the California statute does not protect foreign petitioning activity. As to prong two, Plaintiff responded by presenting evidence and argument to support the probability of success on the merits of each of his claims.
In reply, Defendants presented legal arguments to rebut each of the contentions that Plaintiff raised in his opposition.
Following oral argument, the trial court granted Defendants' anti-SLAPP motion, ruling in relevant part that Defendants met their burden under prong one and that Plaintiff did not meet his responsive burden under prong two. As to prong one, the court reasoned that, even though the anticipated litigation was to be in England, because all of the conduct by Defendants occurred in California, the anti-SLAPP statute applied to Defendants' activities. As to prong two, the court ruled that Plaintiff did not establish a probability of success at trial on either of his claims.
Plaintiff timely appealed from the order granting Defendants' motion to strike, and we have jurisdiction to hear his appeal. (§ 425.16, subd. (i) [order granting anti-SLAPP motion is appealable].)
III.
DISCUSSION
On appeal, Plaintiff argues that the trial court erred in ruling on both prongs of the section 425.16 analysis — i.e., Defendants did not meet their burden of establishing that Plaintiff's claims arose from protected activity of Defendants, and in any event Plaintiff met his burden of demonstrating the merit of his claims by establishing the requisite probability of success. Because we will conclude that Plaintiff's claims are not based on Defendants' protected free speech or petitioning activity, we will reverse the order granting Defendants' special motion to strike.
Under prong one, "the critical consideration is whether the cause of action is based on the defendant's protected free speech or petitioning activity." (Navellier v. Sletten (2002) 29 Cal.4th 82, 89 (Navellier).) Given this consideration and the above-quoted statutory standard, Plaintiff argues that neither of the two claims he alleged against Defendants arises from protected activity. According to Plaintiff, the Defendants' activity that forms the basis of his causes of action — namely, the manner in which Gilbert investigated Plaintiff's educational background for potential use in official proceedings in England — was not, in the language of section 425.16, subdivision (b)(1), "in furtherance of the person's right of petition or free speech under the United States Constitution or the California Constitution." (Italics added.)
For the reasons that follow — and, in particular, the holding in Guessous that "petitioning activity undertaken in a foreign country is not protected by the anti-SLAPP statute" (Guessous, supra, 179 Cal.App.4th at p. 1186) — we agree and will conclude that Defendants' acts are not protected activities for purposes of determining whether a defendant's acts are protected petitioning activity under subdivision (b)(1) of the anti-SLAPP statute, section 425.16.
Plaintiff raises other arguments in support of his position that the acts underlying his claims do not arise from protected activity. We have assumed without deciding that, other than determining whether Defendants' acts underlying Plaintiff's claims were in furtherance of Defendants' federal or state constitutional right of petition under subdivision (b)(1) of the anti-SLAPP statute, Defendants' acts qualify as protected activity for purposes of striking the claims under the anti-SLAPP statute.
Guessous involved a lawsuit in California between business competitors. (Guessous, supra, 179 Cal.App.4th at pp. 1180-1181.) In settlement of prior litigation in California, one of the Guessous plaintiffs and the defendant entered into a covenant not to sue. (Id. at p. 1181.) Pursuant to that covenant, the defendant agreed that it would not sue the plaintiff and his affiliated entities (which included the second Guessous plaintiff) for any claims based on alleged similarities between the products designed, manufactured or sold by the plaintiffs. (Ibid. at p. 1181.) Years later, in alleged violation of this covenant, the Guessous defendant filed two trademark infringement lawsuits in France against one the Guessous plaintiffs. (Id. at pp. 1181-1182.) While the French actions were pending, the plaintiffs filed the Guessous action against the defendant in California. (Ibid.) Asserting claims for breach of contract and declaratory relief, the Guessous plaintiffs alleged that the defendant's covenant not to sue precluded the defendant's lawsuits in France. (Id. at p. 1182.)
The defendant responded to the California complaint with a special motion to strike under the anti-SLAPP statute. (Guessous, supra, 179 Cal.App.4th at p. 1182.) The trial court denied the motion, and the Court of Appeal affirmed on the basis that the defendant did not meet its burden under prong one. (Id. at pp. 1182, 1187.)
The appellate court first examined the "express language of the anti-SLAPP statute [that] limits motions to strike to causes of action arising from any act '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.' (§ 425.16, subd. (b)(1), italics added.)" (Guessous, supra, 179 Cal.App.4th at p. 1185.) The court concluded that this language "is plain and unambiguous": "It clearly limits the petitioning or free speech activity to that made pursuant to rights granted by the United States or California Constitutions . . . ." (Id. at p. 1185.) After analyzing the First Amendment to the United States Constitution and article 1, section 3 of the California Constitution, the Guessous court ruled that "neither Constitution grants a United States citizen the right to petition a foreign government." (Guessous, at p. 1185.)
"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances." (U.S. Const., 1st Amend.)
"The people have the right to instruct their representatives, petition government for redress of grievances, and assemble freely to consult for the common good." (Cal. Const., art. 1, § 3.)
Defendants present three arguments in support of their position that the holding in Guessous does not apply here. None is persuasive, especially given Defendants' concession that "[t]here is no dispute that the eventual legal proceeding took place in England" and no suggestion that Bird, Marella was retained to provide the investigatory services for a proceeding in the United States.
At the hearing in the superior court, Defendants' attorney argued: "If no lawsuit was filed ever anywhere, [Plaintiff] still would be subject to the anti-SLAPP motion because [Bird, Marella's petitioning activity] was attorney advice and preparation for litigation within California." (Italics added.) While that may be an accurate statement of the law (see Taus v. Loftus (2007) 40 Cal.4th 683, 712-713 [investigation that precedes protected speech activity also protected]) — on which we express no opinion — the record in this appeal does not support the factual predicate for Defendants' argument. (See Villacorta v. Cemex Cement, Inc. (2013) 221 Cal.App.4th 1425, 1433 [oral argument of counsel is not evidence].) Here, neither the complaint nor the evidence in support of or in opposition to Defendants' motion suggests that Bird, Marella provided advice or prepared for "litigation within California"; to the contrary, the pleadings, evidence and Defendants' concession on appeal establish conclusively that the anticipated litigation was in England.
First, Defendants emphasize that the anti-SLAPP statute "shall be construed broadly." (§ 425.16, subd. (a).) We agree; the legislative history of the original 1992 statute and the 1997 amendment containing the above-quoted language in subdivision (a) "demonstrates the Legislature's intent consistently has been to protect all direct petitioning of governmental bodies (including, as relevant here, . . . administrative agencies) and petition-related statements and writings." (Briggs v. Eden Council for Hope & Opportunity (1999) 19 Cal.4th 1106, 1119-1121 & 1121.) Nonetheless, in construing the anti-SLAPP statute, we must "give effect to all" of its provisions. (Code Civ. Proc., § 1858.) Thus, however broadly we construe section 425.16, we may not ignore the express unambiguous language of subdivision (b)(1) that limits motions to strike to those claims arising from an act "in furtherance of the person's right of petition or free speech under the United States Constitution or the California Constitution." (Italics added.) This language, as we have concluded above, does not protect Defendant's right, if any, to petition in England. (Guessous, supra, 179 Cal.App.4th at p. 1186.)
Moreover, even though courts need not consider legislative history where the statutory language is unambiguous (Estate of Griswold (2001) 25 Cal.4th 904, 911), the Guessous court did consider the legislative history of (unambiguous) subdivision (b)(1) of section 425.16, and we agree that it "bolsters" the construction that we apply in this case: " ' "[SLAPP suits] are lawsuits designed to silence ordinary citizens from trying to influence their government. In a democratic society with the right to petition government being one of the fundamental liberties, we want to encourage participation." ' (Sen. Com. on Judiciary, com. on Sen. Bill No. 1264 (1991-1992 Reg. Sess.) ch. 726, italics added.) Additionally, the comments section in Assembly Bill No. 1158 pertaining to section 425.18, involving SLAPP back actions, states: 'According to the author, this bill clarifies the protections of California's anti-SLAPP law, which protects the public's First Amendment rights by prohibiting SLAPPs, lawsuits pursued solely to prevent members of the public from participating in their government or speaking out on public issues.' (Sen. Conc. Amends. to Assem. Bill No. 1158 (2005-2006 Reg. Sess.) as amended Aug. 24, 2005, p. 2, italics added.)" (Guessous, supra, 179 Cal.App.4th at pp. 1185-1186.)
Second, Defendants argue that, regardless where the petitioning activity took place, because Gilbert's investigative activities — i.e., the acts that form the basis of Plaintiff's causes of action — took place in California, California's anti-SLAPP statute should apply. We disagree. The protected activity is the right to petition, not the right to investigate. (See Navellier, supra, 29 Cal.4th at p. 89 ["the critical consideration" is whether the cause of action is based on "the defendant's protected . . . petitioning activity" (italics added)].) The petitioning activity here was always intended to take place, and indeed took place, in England. (See fn. 12, ante.) However, "petitioning activity undertaken in a foreign country is not protected by the anti-SLAPP statute." (Guessous, supra, 179 Cal.App.4th at p. 1186.) If the petitioning activity is not protected under the anti-SLAPP statute, then neither is the investigation that preceded the petitioning activity.
Finally, Defendants encourage us to follow a federal district court decision, Mireskandari v. Daily Mail & General Trust PLC (C.D. Cal., Oct. 8, 2013, No. CV 12-02943 MMM (SSx)) 2013 WL 12114762 (Daily Mail). In Daily Mail, the district court granted in part an anti-SLAPP motion in a case in which Plaintiff sued a British company, the newspaper it owns and one of the newspaper's writers (together, British defendants), alleging the same campaign to discredit Plaintiff and to end his career in law as Plaintiff alleges against Defendants here. (Daily Mail, at p. *1.) In Daily Mail, Plaintiff's claims against the British defendants were based on the writer's investigation into Plaintiff's academic and educational background and the newspaper's articles about Plaintiff. (Id. at pp. *1, *6.) The British defendants moved to specially strike certain causes of action under California's anti-SLAPP statute. (Id. at pp. *2-*6.) In part, Plaintiff opposed the motion in reliance on Guessous, supra, 179 Cal.App.4th 1177, arguing that "the Daily Mail articles are not subject to California's anti-SLAPP statute because they discussed proceedings that took place in a foreign jurisdiction." (Id. at p. *6.) The district court declined to apply Guessous, instead relying on language in Summerfield v. Randolph (2011) 201 Cal.App.4th 127 (Summerfield) to grant the British defendants' anti-SLAPP motion. (Daily Mail, at p. *6.)
The writer, who was employed by the newspaper, was based in Los Angeles. (Daily Mail, supra, 2013 WL 12114762 at p. *1.)
According to the district court's analysis, Guessous " 'did not have reason to consider whether a statement made in a foreign court could be protected under [subdivision (e) of] the anti-SLAPP statute' "; yet Summerfield "directly addressed that question, and concluded that a statement made in connection with proceedings taking place in a foreign court is a 'statement . . . made in connection with an issue under consideration . . . by a judicial body' for purposes of [section] 425.16[, subdivision ](e)(2)." (Daily Mail, supra, 2013 WL 1211476 at p. *6, quoting from Summerfield, supra, 201 Cal.App.4th at pp. 134, 136-137, italics added.) The district court attributed to Summerfield the concept that "statements made in connection with a case pending in the courts of [another country] were within the ambit of [section] 425.16[, subdivision ](e)(2)." (Daily Mail at p. *6, italics added.)
Subdivision (e) of section 425.16 provides in full: "As used in this section, '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 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."
Defendants urge us to apply this same concept here. However, the Daily Mail opinion never reached the issue before us — namely, whether a defendant's act can be "in furtherance of the person's right of petition . . . under the United States Constitution or the California Constitution" when there is no intent to exercise the right of petition in the United States. Rather, the referenced issue in Daily Mail was whether the British defendants' acts were "made in connection with an issue under consideration or review by a . . . judicial body" for purposes of subdivision (e)(2) of the anti-SLAPP statute. After answering that question affirmatively, the district court ended its prong one analysis and proceeded to conduct the prong two analysis without ever considering whether the British defendants' acts were in furtherance of their federal or state constitutional petitioning rights. (Daily Mail, supra, 2013 WL 1211476 at p. *6.)
We begin with the understanding that "we 'are not bound by federal decisions on matters of state law.' " (M'Guinness v. Johnson (2015) 243 Cal.App.4th 602, 625.)
The district court concluded that, because the statements the newspaper published about Plaintiff's academic and educational record were " 'under consideration or review' in the pending SRA investigation and [related] disciplinary proceeding pending against [Plaintiff]," and because this investigation and proceeding in England "constituted 'official proceeding[s] authorized by [specifically identified British] law," the British defendants' acts were made in connection with an issue under consideration by a judicial body for purposes of subdivision (e)(2) of the anti-SLAPP statute. (Daily Mail, supra, 2013 WL 1211476 at p. *6.)
In Summerfield, there was no issue as to whether what the defendants did in litigation in a foreign country was in furtherance of their federal or state constitutional right of petition, because what the defendants did in the foreign litigation was intended to affect litigation pending in California; the only issue was whether what defendants did in the foreign litigation qualified as an " 'act' " under subdivision (e) of the anti-SLAPP statute. (Summerfield, supra, 201 Cal.App.4th at pp. 135-136.) In Daily Mail (as in Guessous, supra, 179 Cal.App.4th 1177, and the present case), there was no litigation or anticipated litigation in the United States, and for this reason, the district court's reliance on Summerfield was misplaced.
In Summerfield, an attorney provided an affidavit for his client's submission to a foreign court in an attempt "to influence the determination of issues pending in a California court." (Summerfield, supra, 201 Cal.App.4th at pp. 129-130.) The foreign court ruled against the client, and the client's adversary sued the attorney and his firm for malicious prosecution based on the preparation and filing of the affidavit in the foreign proceeding. (Ibid.) In an appeal following the disposition of the defendants' special motion to strike, the only prong one issue was whether the attorney's statement (i.e., the client's affidavit) was an "act" under subdivision (e) of the anti-SLAPP statute (and the Court of Appeal concluded that it was). (Id. at pp. 135-136.) Because there was no question but that the attorney had provided the affidavit in an attempt "to influence the determination of issues pending in a California court" (id. at pp. 129-130), there was no issue as to whether it was provided in furtherance of the constitutional right of petition under subdivision (b)(1) of the anti-SLAPP statute.
In Daily Mail, the district court declined to follow Guessous because, relying on language from Summerfield, the Guessous court " 'did not have reason to consider whether a statement made in a foreign court could be protected under [subdivision (e) of] the anti-SLAPP statute.' " (Daily Mail, supra, 2013 WL 1211476 at p. *6, quoting from Summerfield, supra, 201 Cal.App.4th at p. 134.) As we have just explained, however, Daily Mail's application of Summerfield was unjustified, because in Summerfield (unlike in Daily Mail) there was litigation already pending in California that triggered the Summerfield defendants' constitutional right of petition. Moreover, in Guessous there was no issue as to whether what the defendant allegedly did was an " 'act' " for purposes of subdivision (e) of the anti-SLAPP statute, because what the Guessous defendant had done was to file and prosecute two lawsuits against one of the Guessous plaintiffs in France (Guessous, supra, 179 Cal.App.4th at pp. 1181-1182) — clearly an " 'act' " under subdivision (e) of the anti-SLAPP statute (see § 425.16, subd. (e)(1) [an " 'act' " includes "any written or oral statement or writing made before a . . . judicial proceeding"]). Nonetheless, the Guessous court struck the California complaint under the anti-SLAPP statute because the petitioning activity — despite being an " 'act' " under subdivision (e) — was in France and, thus, not in furtherance of the Guessous defendant's constitutional right of petition under subdivision (b)(1). (Guessous, at p. 1185 ["neither [the United States nor California] Constitution grants a United States citizen the right to petition a foreign government"].)
In contrast to the analysis in Daily Mail (and Summerfield on which Daily Mail is based), in the present appeal, the issue is not whether Defendants' activity qualifies as an " 'act' " for purposes of subdivision (e) of the anti-SLAPP statute; we have assumed that it does. (See fn. 9, ante.) As in Guessous, the prong one issue is whether Defendants' activities were "in furtherance of [Defendants'] right of petition . . . under the United States Constitution or the California Constitution," as required by subdivision (b)(1) of the anti-SLAPP statute. Yet, as discussed above, Daily Mail does not deal with section 425.16, subdivision (b)(1)'s constitutional right of petition; and " ' "cases are not authority for propositions not considered" ' " (McWilliams v. City of Long Beach (2013) 56 Cal.4th 613, 626). Accordingly, Defendants' reliance on the district court's ruling in Daily Mail is inapt, it does not apply to the issue in this appeal, and we decline Defendants' suggestion that we follow it.
In summary, for purposes of determining whether a defendant's acts are protected petitioning activity under subdivision (b)(1) of the anti-SLAPP statute (§ 425.16), as between the location of the petitioning activity and the location of the defendant's acts, the focus should be on the former. In the present case, because the petitioning activity was intended to (and did) take place outside of the United States, Defendants' acts — even though they took place in California — were not in furtherance of Defendants' right to petition under the United States Constitution or the California Constitution and, thus, were not subject to California's anti-SLAPP statute.
III.
CONCLUSION
Defendants' course of conduct from which Plaintiff's two causes of action arose did not include activity "in furtherance of [Defendants'] right of petition . . . under the United States Constitution or the California Constitution." (§ 425.16, subd. (b)(1), italics added.) Thus, Defendants did not meet their initial burden of establishing that either of Plaintiff's two causes of action arose from activity protected by the anti-SLAPP statute, and the trial court erred in concluding otherwise.
Because Plaintiff's claims are not based on protected activity, the burden never shifted to Plaintiff to demonstrate the potential merits of his claims. For this reason, we do not reach the issue whether Plaintiff established a probability of success on the two causes of action he alleges against Defendants. (Gotterba v. Travolta (2014) 228 Cal.App.4th 35, 43-44 [court need not discuss second prong if defendant fails to establish that claims arise from protected activity]; Guessous, supra, 179 Cal.App.4th at p. 1187.) By not reaching the second prong, we have not expressed any view on the merits of either Plaintiff's claims (City of Costa Mesa v. D'Alessio Investments, LLC (2013) 214 Cal.App.4th 358, 371) or Defendants' defenses (Castleman v. Sagaser (2013) 216 Cal.App.4th 481, 496).
DISPOSITION
The trial court's order granting Defendants' anti-SLAPP motion is reversed, and the matter is remanded with instructions to deny the motion. Plaintiff is awarded costs on appeal. (Cal. Rules of Court, rule 8.278(a)(2).)
IRION, J. WE CONCUR: MCCONNELL, P. J. HALLER, J.