NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

OPINION

WISEMAN, Acting P.J.

David Forsyth filed a complaint against Wilma Maldonado and Century 21 C. Watson Realty (Century 21) for claims of libel per se and intentional infliction of emotional distress. Maldonado filed an anti-SLAPP motion to strike the complaint, which Century 21 joined. The trial court granted the motion and dismissed the case, and Forsyth appeals. We reverse the judgment because the allegations that form the basis of Forsyth's claims do not arise from protected activity.

FACTUAL AND PROCEDURAL HISTORIES

On January 19, 2010, Forsyth filed a complaint in Fresno County Superior Court against Maldonado and Century 21 (respondents).1 He alleged that Maldonado, acting individually and on behalf of Century 21, prepared and mailed letters falsely accusing Forsyth of being a con man who uses false promises, blackmail, and violence. He alleged that the letters were sent to "a substantial number of individuals known by [Forsyth] ...."

Three letters were attached as exhibits to the complaint; they were addressed to (1) a former employer of Forsyth, dated November 12, 2009; (2) Sanger High School, dated November 30, 2009; and (3) a law firm, dated November 30, 2009. The letters were not signed. Each letter enclosed, among other things, a copy of a letter written by Maldonado. The Maldonado letter was dated February 25, 2008, and was addressed to the Department of Real Estate, Complaints. In this letter, Maldonado alleged Forsyth was a "con man" and included accusations of misconduct similar to some of the accusations in the anonymous letters of November 2009. Forsyth alleged that Maldonado acted with the intent to harm his reputation and cause severe emotional distress.

Forsyth brought two claims: libel per se and intentional infliction of emotional distress.

On March 23, 2010, Maldonado filed a motion to strike the complaint pursuant to Code of Civil Procedure section 425.16, the anti-SLAPP statute (section 425.16). Maldonado, a California licensed real estate agent, worked with Forsyth at Century 21 in the 1990's. She acknowledged that the letter signed by her and enclosed in the anonymous mailings attached to Forsyth's complaint was, in fact, a copy of a complaint letter that she had sent to the California Department of Real Estate (CDRE) on February 25, 2008. The purpose of the letter to the CDRE was to seek rescission of Forsyth's real estate license. Maldonado denied that she wrote or sent any of the anonymous letters attached to Forsyth's complaint.

Maldonado argued that her February 25, 2008, letter to the CDRE was a petition to the governmental agency that regulates her profession and, as such, was protected activity under the anti-SLAPP statute. She further argued that Forsyth could not demonstrate a probability of prevailing on his claims because her conduct was privileged under Civil Code section 47. Century 21 joined Maldonado's anti-SLAPP motion because its purported liability was based on Maldonado's conduct.

In response to the anti-SLAPP motion, Forsyth explained that he "made no allegations of impropriety on Maldonado's part related to her petitioning the CDRE in February, 2008." Rather, his claims arose from the anonymous letters that were sent beginning in November 2009 to various persons close to Forsyth. These letters were not mailed in connection with any protected activity.

Maldonado replied that she denied writing or mailing the anonymous letters, and Forsyth had no admissible evidence to support his allegation that she was involved in the dissemination of those letters.

The trial court granted the anti-SLAPP motion. The court determined that the anti-SLAPP statute applied to Maldonado's letter to the CDRE, and Forsyth did not meet his burden of showing a probability that he would prevail on his claims. Since the claims against Century 21 were premised on Maldonado's conduct, the court granted the motion with respect to Century 21 as well. Judgment was entered on May 10, 2010.

DISCUSSION

Anti-SLAPP statute

"In 1992, the California Legislature found and declared that `there has been a disturbing increase in lawsuits brought primarily to chill the valid exercise of the constitutional rights of freedom of speech and petition for the redress of grievances.' (§ 425.16, subd. (a).) The Legislature also found and declared that `it is in the public interest to encourage continued participation in matters of public significance, and that this participation should not be chilled through abuse of the judicial process.' (§ 425.16, subd. (a).) When the abuse of the judicial process involves a meritless suit brought against someone who has exercised a specified constitutional right, the suit is referred to as a [strategic lawsuit against public participation]. [Citation.]" (Smith v. Adventist Health System/West (2010) 190 Cal.App.4th 40, 49-50, fn. omitted.)

"The Legislature addressed the SLAPP problem by enacting section 425.16, which is known as California's anti-SLAPP statute. [Citation.] The statute created a procedural remedy—specifically, a special motion to strike—designed to dispose of some SLAPP's at an early stage in the litigation. (§ 425.16, subd. (b)(1).)" (Smith v. Adventist Health System/West, supra, 190 Cal.App.4th at p. 50.)

In particular, section 425.16, subdivision (b)(1), provides: "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."

An "`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'" is defined in the statute to include: "(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).)

In deciding an anti-SLAPP motion to strike, the court engages in a two-step process. (Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 67.) "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." (Ibid.) Second, if the defendant has met his burden, the court determines whether the plaintiff can demonstrate a probability of prevailing on the claim. (Ibid.) If the plaintiff fails to demonstrate a probability of prevailing, then the motion to strike is granted. (Haight Ashbury Free Clinics, Inc. v. Happening House Ventures (2010) 184 Cal.App.4th 1539, 1547.)

We review de novo the court's order granting the motion to strike. (Smith v. Adventist Health System/West, supra, 190 Cal.App.4th at p. 52.)

"Arising from" protected activity

On appeal, Forsyth argues that Maldonado failed to make the threshold showing that Forsyth's claims arose from her protected activity. Forsyth does not dispute that Maldonado's letter sent to the CDRE qualifies as protected activity under section 425.16, subdivision (e). Instead, he argues that his claims of libel per se and intentional infliction of emotional distress do not arise from the acts of writing the letter and mailing it to the CDRE on February 25, 2008. Rather, his claims are based on the mailing of different letters in November 2009 to recipients unrelated to the CDRE.

"[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. [Citation.] 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. [Citations.]" (City of Cotati v. Cashman (2002) 29 Cal.4th 69, 78.) "In deciding whether the initial `arising from' requirement is met, a court considers `the pleadings, and supporting and opposing affidavits stating the facts [on] which the liability or defense is based.' (§ 425.16, subd. (b).)" (Id. at p. 79.)

Here, the acts that underlie Forsyth's causes of action were the preparation and mailing of anonymous letters to various people in November 2009. No argument is made that these anonymous letters were mailed in furtherance of the right to petition or free speech as defined in section 425.16, subdivision (e). Respondents argue only that there is no evidence that they were involved in sending the anonymous letters. Forsyth argues, therefore, that the anti-SLAPP statute does not apply to his lawsuit, and the motion to strike should have been denied.

Maldonado responds that Forsyth's claims present "mixed causes of action," meaning that the claims allege both protected and unprotected activity. (Peregrine Funding, Inc. v. Sheppard Mullin Richter & Hampton LLP (2005) 133 Cal.App.4th 658, 672.) Maldonado argues that "[Forsyth's] complaint alleges two mixed causes of action in that each of three envelopes allegedly sent by [Maldonado] to third parties enclosed [her] February 25, 2008, letter to the CDRE." We are not persuaded that Forsyth's claims allege protected activity.

The acts of writing and sending to the CDRE on February 25, 2008, a complaint letter in which Maldonado accused Forsyth of misconduct and sought rescission of his real estate license appear to be protected activity under the anti-SLAPP statute, as either a "writing made before [an] ... official proceeding authorized by law" or a "writing made in connection with an issue under consideration or review by [an] ... official proceeding authorized by law ...." (§ 425.16, subd. (e)(1) & (2).)

A written statement is considered protected activity pursuant to the anti-SLAPP statute when it is "made before" an official proceeding, in this case, the CDRE. (§ 425.16, subd. (e)(1).) The same written statement is not necessarily protected activity if it is not made before an official proceeding. We do not see how sending copies of Maldonado's CDRE letter to Forsyth's former employer, a high school, and a law firm more than a year after the original complaint was mailed to the CDRE is "in furtherance" of Maldonado's right to petition to the CDRE. (§ 425.16, subd. (b)(1).) As a result, we reject Maldonado's position that sending copies of the CDRE complaint letter to persons unrelated to the CDRE is also protected activity.

In this case, respondents and the trial court focused on the conduct to which Maldonado admitted—writing and mailing to the CDRE a complaint letter on February 25, 2008. The proper focus in deciding an anti-SLAPP motion, however, is the wrongful conduct alleged by the plaintiff, not the conduct admitted to by the defendant. (See, e.g., Peregrine Funding, Inc. v. Sheppard Mullin Richter & Hampton LLP, supra, 133 Cal.App.4th at p. 671 [in deciding anti-SLAPP motion, court must examine "the specific acts of wrongdoing plaintiffs allege"].) Forsyth alleged that Maldonado wrote letters falsely accusing him of being a con man and engaging in blackmail and violence; he alleged that she mailed these letters to people close to him; and he alleged that she enclosed copies of various documents, including the CDRE complaint. The wrongful acts alleged do not arise from protected activity.

Consequently, Maldonado and Century 21 failed to meet their threshold burden, and the trial court should have denied the anti-SLAPP motion. (Baharian-Mehr v. Smith (2010) 189 Cal.App.4th 265, 271 ["if the defendant does not demonstrate th[e] initial prong, the court should deny the anti-SLAPP motion and need not address the second step"].)

DISPOSITION

The judgment entered on May 10, 2010, based on the order granting the anti-SLAPP motion is reversed. Costs are awarded to appellant.

Levy, J. and Cornell, J., concurs.