NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

MALLANO, P. J.

A physician was a member of a limited liability company but became incapacitated due to surgery performed for a brain tumor. His wife, also a physician and member of the company, attempted informally to determine the value of their interest in the company and to sell it back. As alleged, the company proved uncooperative. The wife filed this action, asserting claims for involuntary dissolution, breach of fiduciary duty, an accounting, and declaratory relief. The company demurred on the ground that the claims failed to state facts sufficient to constitute causes of action.

While the demurrer was pending, a manager of the company sent a letter to the other members, purporting to describe the history of the dispute, settlement efforts, and the allegations of the complaint. The letter also solicited members to buy the doctors' interest in the company.

The trial court sustained the demurrer as to each cause of action on the ground it was not sufficiently supported by factual allegations. Leave to amend was granted, and a first amended complaint was filed. It contained the same causes of action, was based on the same theory of the case, and sought the same remedies. It added dates and specific events not mentioned in the original complaint, including the manager's letter, which allegedly had the effect of manipulating and suppressing the price that other members would be willing to pay for the couple's interest by telling them the company had previously offered $5.18 per "unit" even though each unit was worth at least $11.05.

The company responded with a special motion to strike, contending that the allegations about the manager's letter rendered the first two causes of action (dissolution and breach of fiduciary) a strategic lawsuit against public participation (SLAPP) (Code Civ. Proc., § 425.16; undesignated section references are to that code). The trial court denied the motion, explaining that the letter was merely evidence in support of the claims and that the gravamen of the claims was a business dispute regarding dissolution while the letter was only incidental to the claims.

We agree with the reasons stated by the trial court and affirm.

I

BACKGROUND

The facts and allegations in this appeal are taken from the pleadings as well as the declarations and exhibits submitted in connection with the anti-SLAPP motion.

A. Complaint

Plaintiff Barbara Sonne, a medical doctor, filed the original complaint on October 22, 2009. It alleged as follows.

The action was filed on behalf of Sonne and her husband, Dr. Marc Sonne, both of whom were members of defendant HealthCare Partners Holdings, LLC (Company). Marc had executed a general power of attorney in Barbara's favor. In July 2008, Marc became incapacitated due to surgery performed for a brain tumor. After the surgery, Marc was unable to care for himself and to engage in his profession. As a result of his incapacity and loss in income, the Sonnes wanted to obtain the fair market value of their membership interest in the Company.1

Beginning in early 2009, the individuals in control of the Company knowingly countenanced persistent and pervasive fraud, mismanagement, or abuse of authority in dealing with the Sonnes. The Company refused to pay the Sonnes the fair market value of their shares, or "units."

The Company breached its duties to the Sonnes "by misrepresenting the fair market value of the Sonnes' interest [therein], by refusing to provide the Sonnes with complete information about the fair market value of [the Company], by refusing to pay fair market value for the Sonnes' interest in [the Company], and by engaging in other conduct designed to induce the Sonnes to sell their interest in [the Company] for less than its full, current fair market value."

The complaint contained claims for involuntary dissolution of the Company, breach of fiduciary duty, an accounting, and declaratory relief. The prayer for relief sought the dissolution and winding up of the Company, general and punitive damages, an accounting of the Company's affairs from 2005 to the present, including the interest and amounts owed the Sonnes, and a declaration of the parties' rights and obligations.

On May 10, 2010, the Company filed a demurrer, attacking the complaint for its lack of factual allegations and arguing it failed to state a cause of action. The Sonnes filed opposition, asserting the complaint was sufficiently pleaded. Meanwhile, the parties engaged in negotiations about the Company's demand that the Sonnes enter into a confidentiality agreement as a prerequisite to receiving financial records.

By letter dated June 15, 2010, a manager at the Company, Dr. William Chin, contacted the other members of the Company and described the dispute with the Sonnes, the existence of the lawsuit, the Company's prior offer to buy the Sonnes' units at $5.18 per unit, the Sonnes' acceptance and subsequent rejection of the offer, the Company's legal position, based on advice of counsel, that it had no obligation to buy the Sonnes' units, and the Sonnes' allegedly inconsistent approach to the entire dispute. The letter ended by asking any individuals interested in the Sonnes' units to contact the Company's attorney.

By order filed August 13, 2010, the trial court sustained the demurrer as to each cause of action, concluding that they lacked sufficient factual support. The Sonnes were given 20 days' leave to amend.

On September 2, 2010, the Sonnes filed a first amended complaint. It was twice as long as the original, going from six pages to twelve.

The allegations described provisions of the Company's operating agreement and the Company's refusal to provide the Sonnes with numerous specific financial records, which had been requested on several specified dates. The amended complaint further alleged as follows.

Dr. Chin had offered, on behalf of the Company, to buy each of the Sonnes' units at $5.18 although he represented that each unit was actually worth $12.94. At the Company's insistence, the Sonnes entered into a confidentiality agreement to protect the secrecy of the financial records being requested. Nevertheless, the Company did not provide the Sonnes with all of the records they sought. Sometime in June 2010, Dr. Chin sent a letter to the other members of the Company, inviting them to purchase the Sonnes' ownership interest. "The letter intentionally manipulated and suppressed the price that other members of [the Company] would be willing to pay . . . by telling the members that [the Company] had only offered $5.18 per unit and by concealing from the other members that, according to [the Company's] most recent valuation, the Sonnes' ownership interest was worth at least $11.05 per unit."

The first amended complaint contained the same causes of action as before, although alleged in more detail. The first cause of action, for involuntary dissolution, set forth five grounds for winding up the company: (1) misrepresenting the value of the Sonnes' ownership interest in the Company; (2) refusing to provide the Sonnes with documents to which they were entitled under the Corporations Code and which would have allowed them to determine independently the value of their interest; (3) concealing facts and information relating to the fair market value of the Sonnes' interest; (4) refusing to pay the Sonnes the fair market value for their ownership interest; and (5) intentionally manipulating and suppressing the price for which the other members of the Company would be willing to purchase the Sonnes' interest. The second cause of action, for breach of fiduciary duty, asserted the same five grounds as constituting a violation of the Company's fiduciary duties. The prayer for relief sought the same remedies as the original complaint. The theory of the case was unchanged.

B. Anti-SLAPP Motion

On October 12, 2010, the Company filed an anti-SLAPP motion, contending that the causes of action for involuntary dissolution and breach of fiduciary duty constituted a SLAPP because they were based in part on Dr. Chin's letter and its alleged effect in manipulating and suppressing the price for which other members would pay to acquire the Sonnes' interest. The Company argued that those two causes of action were "based on" or "arose from" Dr. Chin's letter, and the letter came within the scope of the anti-SLAPP statute as a "statement or writing made in connection with an issue under consideration or review by a . . . judicial body." (§ 425.16, subd. (e)(2).) The Sonnes filed opposition, arguing that the claims did not "arise from" Dr. Chin's letter, and, alternatively, even if the letter was protected activity, it was merely incidental to the claims.

By order dated November 15, 2010, the trial court denied the motion to strike. The court explained that Dr. Chin's letter was merely evidence of the Company's wrongdoing, not the basis of the claims. In addition, even assuming the letter was "protected activity," the gravamen of the claims was a business dispute involving dissolution of the Company, and the letter was only incidental to the claims.

The Company appealed.

II

DISCUSSION

Our review of an order granting or denying an anti-SLAPP motion is de novo. (See Flatley v. Mauro (2006) 39 Cal.4th 299, 325.)

On appeal, the parties repeat the same arguments presented in the trial court. We affirm for the reasons the trial court gave in denying the motion.

A. Anti-SLAPP Statute

"`Litigation which has come to be known as SLAPP is defined by the sociologists who coined the term as "civil lawsuits . . . that are aimed at preventing citizens from exercising their political rights or punishing those who have done so." . . . [¶] . . . [¶]

"`SLAPP suits are brought to obtain an economic advantage over the defendant, not to vindicate a legally cognizable right of the plaintiff. . . . [O]ne of the common characteristics of a SLAPP suit is its lack of merit. . . . But lack of merit is not of concern to the plaintiff because the plaintiff does not expect to succeed in the lawsuit, only to tie up the defendant's resources for a sufficient length of time to accomplish plaintiff's underlying objective. . . . As long as the defendant is forced to devote its time, energy and financial resources to combating the lawsuit its ability to combat the plaintiff in the political arena is substantially diminished.'" (Wilbanks v. Wolk (2004) 121 Cal.App.4th 883, 890-891.)

"`The Legislature enacted the . . . statute to protect defendants . . . from interference with the valid exercise of their constitutional rights, particularly the right of freedom of speech and the right to petition the government for the redress of grievances.'" (Contemporary Services Corp. v. Staff Pro Inc. (2007) 152 Cal.App.4th 1043, 1052.)

The anti-SLAPP statute provides that "[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), italics added.) The statute is to "be broadly construed to encourage continued participation in free speech and petition activities." (Wanland v. Law Offices of Mastagni, Holstedt & Chiurazzi (2006) 141 Cal.App.4th 15, 22; accord, § 425.16, subd. (a).)

"[T]he statutory phrase `cause of action . . . arising from' means simply that the defendant's act underlying the plaintiff's cause of action must itself have been an act in furtherance of the right of petition or free speech. . . . In the anti-SLAPP context, the critical point is whether the plaintiff's cause of action itself was based on an act in furtherance of the defendant's right of petition or free speech. . . . `A defendant meets this burden by demonstrating that the act underlying the plaintiff's cause fits one of the categories spelled out in section 425.16, subdivision (e) . . . .'" (City of Cotati v. Cashman (2002) 29 Cal.4th 69, 78, some italics added, citations omitted; accord, Jarrow Formulas, Inc. v. LaMarche (2003) 31 Cal.4th 728, 734 ["arising from" encompasses any act "based on" speech or petitioning activity]; Episcopal Church Cases (2009) 45 Cal.4th 467, 477 [same]; City of Santa Monica v. Stewart (2005) 126 Cal.App.4th 43, 72 [same].)

"As 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 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), italics added; see Briggs v. Eden Council for Hope & Opportunity (1999) 19 Cal.4th 1106, 1117-1118, 1123.)

"Clauses (3) and (4) of section 425.16, subdivision (e), concerning statements made in public fora and `other conduct' implicating speech or petition rights, include an express `issue of public interest' limitation; clauses (1) and (2), concerning statements made before or in connection with issues under review by official proceedings, contain no such limitation." (Briggs v. Eden Council for Hope & Opportunity, supra, 19 Cal.4th at p. 1117.) Thus, if a communication falls within either of the "official proceeding" clauses, the anti-SLAPP statute applies without a separate showing that a public issue or an issue of public interest is present. (See id. at pp. 1117-1121, 1123; Moore v. Shaw (2004) 116 Cal.App.4th 182, 196.) In drafting the statute, the Legislature concluded that authorized official proceedings necessarily involve a public issue or an issue of public interest. (Briggs, at p. 1117.)

In ruling on an anti-SLAPP motion, the trial court "engage[s] in a two-step process. First, the court decides whether the defendant has made a threshold showing that the challenged cause of action is one arising from protected activity. The moving defendant's burden is to demonstrate that the act or acts of which the plaintiff complains were taken `in furtherance of the [defendant]'s right of petition or free speech under the United States or California Constitution in connection with a public issue,' as defined in the statute. (§ 425.16, subd. (b)(1).) If the court finds such a showing has been made, it then determines whether the plaintiff has demonstrated a probability of prevailing on the claim. Under section 425.16, subdivision (b)(2), the trial court in making these determinations considers `the pleadings, and supporting and opposing affidavits stating the facts upon which the liability or defense is based.'" (Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 67.)

Put another way, "[t]he party making a special motion to strike must make a prima facie showing that the plaintiff's cause of action arises from the defendant's free speech or petition activity. . . . Once the defendant makes a prima facie showing, `the burden shifts to the plaintiff to . . . "make a prima facie showing of facts which would, if proved at trial, support a judgment in plaintiff's favor."'" (Rezec v. Sony Pictures Entertainment, Inc. (2004) 116 Cal.App.4th 135, 139, citations omitted; accord, Club Members for an Honest Election v. Sierra Club (2008) 45 Cal.4th 309, 315-316; McGarry v. University of San Diego (2007) 154 Cal.App.4th 97, 108.)

"[T]he mere fact that an action was filed after protected activity took place does not mean the action arose from that activity for the purposes of the anti-SLAPP statute. . . . [T]hat a cause of action arguably may have been `triggered' by protected activity does not [mean] that it is one arising from such." (Navellier v. Sletten (2002) 29 Cal.4th 82, 89, citation omitted.) "`"The anti-SLAPP statute's definitional focus is not the form of the plaintiff's cause of action but, rather, the defendant's activity that gives rise to his or her asserted liability — and whether that activity constitutes protected speech or petitioning." . . .'" (Feldman v. 1100 Park Lane Associates (2008) 160 Cal.App.4th 1467, 1478, citation omitted; accord, Navellier, at pp. 91-93.) "Nothing in the statute itself categorically excludes any particular type of action from its operation." (Navellier, at p. 92.)

B. Protected Activity or Evidence of Liability

Here, the original complaint alleged the Company thwarted the Sonnes' efforts to sell their membership interest by withholding critical financial records and refusing to purchase the Sonnes' interest at anything close to fair market value. Plainly, the original complaint was not based on Dr. Chin's letter because the letter was written after the lawsuit was filed. Although the first amended complaint refers to the letter and its purported effect, the causes of action, requested remedies, and theory of the case are still the same. The letter is best characterized as evidence of what had transpired between the parties up to that point or as evidence of a course of conduct that continued while the lawsuit was pending. As such, the letter was evidence of liability, not the basis of liability; it provided some additional facts to support the legal theories asserted in the original complaint. For example, the original complaint alleged the Company breached its fiduciary duties "by engaging in other conduct designed to induce the Sonnes to sell their interest in [the Company] for less than its full, current fair market value." The letter was evidence falling within that original allegation. It did not convert otherwise legitimate causes of action into a SLAPP. (See Graffiti Protective Coatings, Inc. v. City of Pico Rivera (2010) 181 Cal.App.4th 1207, 1218-1224.) In short, a civil suit cannot arise out of a letter that simply describes the history of that very action.

C. Incidental Activity

In the alternative, assuming Dr. Chin's letter constitutes protected petitioning or speech activity under the anti-SLAPP statute, the motion was still properly denied. "[W]here a cause of action alleges both protected and unprotected activity, the cause of action will be subject to . . . section 425.16 `"unless the protected conduct is `merely incidental' to the unprotected conduct." . . .' . . . [W]here both constitutionally protected and unprotected conduct is implicated by a cause of action, a plaintiff may not `immunize' a cause of action challenging protected free speech or petitioning activity `by the artifice of including extraneous allegations concerning nonprotected activity'; `[c]onversely, if the allegations of protected activity are only incidental to a cause of action based essentially on nonprotected activity, the mere mention of the protected activity does not subject the cause of action to an anti-SLAPP motion.'" (Gallanis-Politis v. Medina (2007) 152 Cal.App.4th 600, 614, citations omitted.)

"[I]t is the principal thrust or gravamen of the plaintiff's cause of action that determines whether the anti-SLAPP statute applies . . ., and when the allegations referring to arguably protected activity are only incidental to a cause of action based essentially on nonprotected activity, collateral allusions to protected activity should not subject the cause of action to the anti-SLAPP statute." (Martinez v. Metabolife Internat., Inc. (2003) 113 Cal.App.4th 181, 188, citation omitted, last italics added, cited with approval in Episcopal Church Cases, supra, 45 Cal.4th at pp. 477-478, and Club Members for an Honest Election v. Sierra Club, supra, 45 Cal.4th at p. 319; accord, Digerati Holdings, LLC v. Young Money Entertainment, LLC (2011) 194 Cal.App.4th 873, 883-884.)

The Sonnes filed this action before Dr. Chin's letter existed. Both complaints allege the same legal theories, are based on the same theory of the case, and seek the same remedies. The original complaint did not "arise from" and was not "based on" the letter for the obvious reason that the letter had not yet been written.

Nothing in the first amended complaint made the anti-SLAPP statute suddenly applicable. The first two causes of action rest on the same legal theories raised in the original complaint: the Company's failure to cooperate with the Sonnes in determining the value of their interest in the Company, and the Company's obstructionist tactics in thwarting the Sonnes' effort to sell their units at a fair market price. Dr. Chin's letter is nothing more than a description of the Company's view of the dispute. It is questionable if the letter would even be an important trial exhibit. At most, the letter is merely incidental protected activity, and barely that. By continuing to engage in postcomplaint misconduct of the type alleged in the original complaint, a defendant cannot transform a legitimate claim into a SLAPP. Dr. Chin's letter was collateral to the amended complaint. (See Peregrine Funding, Inc. v. Sheppard Mullin Richter & Hampton LLP (2005) 133 Cal.App.4th 658, 673.) "Protected speech is not the gravamen or principal thrust of the claims asserted in Plaintiffs' complaint." (Martinez v. Metabolife Internat., Inc., supra, 113 Cal.App.4th at p. 188; cf. Peregrine Funding, Inc., at p. 675 [anti-SLAPP statute applies where "claims are based in significant part on [defendant's] protected petitioning activity" (italics added)].)

Because we conclude that the Company did not make an adequate showing that the claims were based on protected activity, we do not decide whether Sonne would have likely prevailed on the merits at trial. (See City of Cotati v. Cashman, supra, 29 Cal.4th at pp. 80-81.)

Accordingly, the trial court properly denied the special motion to strike.

III

DISPOSITION

The order is affirmed.

CHANEY, J. and JOHNSON, J., concurs.