Filed 2/26/14 Bram v. Kaplan CA2/5 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FIVE

ADAM SCOTT BRAM et al.,

Plaintiffs and Appellants,

v.

MARK VINCENT KAPLAN et al.,

Defendants and Respondents. B245554

(Los Angeles County Super. Ct. No. SC117253)

APPEAL from a judgment and order of the Superior Court of Los Angeles County, Gerald Rosenber g, Judge. Affirmed. Adam Scott Bram, in pro. per., a nd for Plaintiffs and Appellants. Nemecek & Cole, Jonathan B. Cole, Mark Schaeffer and Janette S. Bodenstein for Defendants and Respondents.

________________ _____________2 Plaintiffs and appellants Adam Scott Br am, on behalf of himself, his law firm (Law Offices of Adam Scott Bram), and Pe nelope Joe Bram, a minor, appeal from a judgment in favor of defendants and res pondents Mark Vincent Kaplan, Kaplan & Simon, L.L.P. (K&S), She lley Lewis Albaum, and Brot & Gross, L.L.P. (B&G), following orders granting their special motions to strike Bram’s complaint under Code of Civil Procedure section 425.16, the anti-SLAPP statute. 1 Bram contends the gravamen of his complaint consists of unprotected crimin al activity by defendants; therefore, the antiSLAPP statute does not apply. We conclude each cause of action includes claims based on protected activities under the anti-SLAPP statute; therefor e, the trial court properly applied the statute. Bram did not submit ad missible evidence to sh ow a probability of prevailing on any of his claims . Therefore, we affirm.

FACTS AND PROCED URAL HISTORY

Allegations of the Complaint

On June 1, 2012, Bram filed a 57-page complaint against defendants for breach of fiduciary duty, negligen t misrepresentation, abuse of pr ocess, unfair business practices, unjust enrichment, conspiracy to defraud, and a declaration of constructive trust. The complaint alleged additional causes of acti on against Kaplan and K&S for intentional misrepresentation and defamati on. The allegations of the complaint are as follows in pertinent part.

Bram’s law firm is a sole proprietorship. The law firm hired Sarah Evelyn Kitch

in 2005. Between 2005 and Ma rch 7, 2008, Bram loaned mo re than $150,000 to Kitch,

1 “SLAPP is an acronym for ‘strategic lawsuit against public participation.’ [Citation.]” ( Oasis West Realty, LLC v. Goldman (2011) 51 Cal.4th 811, 816, fn. 1.) All further statutory references are to the Code of Civil Procedure, unless otherwise stated. In addition, Bram’s request for judicial noti ce of the appellate record in his dissolution action, case No. B245554, is granted.3 which she has not repaid. Bram and K itch married on March 7, 2008, and had a daughter. Kitch induced Bram to designate her as a joint owner on personal accounts containing his separate property funds. On February 1, 2010, K itch began consulting with a ttorneys B&G and Albaum as

to the nature of the funds and the amounts to seize. Kitch to ok $512,679.49 from the accounts. By the date of separation on Febr uary 10, 2010, Kitch ha d transferred all of Bram’s separate funds. Defendants conspired with Kitch to take the separate property funds and use them to pay defendants fo r Kitch’s child custody litigation. Immediately after, Kitch, Albaum, a nd B&G assured Bram that Kitch would comply with the Fam ily Law Automatic Temporary Restraining Orders by not using his separate property funds over which she had asse rted control. On March 4, 2010, Kitch

filed for dissolution. On March 30 and July 6, 2010, Kitch, Albaum, and B&G represented that Kitch had not used any of the funds. In reliance on these representations, Bram did not try to recover the funds, made su pport payments to Kitch, and paid her bills

for several months. Kitch manually copied 12 months of the law firm’s invoices containing attorneyclient privileged information and work-produc t material, then gave the copies to the attorney defendants. Kitch took a computer belonging to Bram’s law firm and used

financial records contained on the stolen computer to prepare documents for litigation showing the law firm’s revenue. Kitch had a ccess to the law firm’s financial revenue in the course of her duties as an employee. The trial court ordered the computer returned to Bram, but the financial accounting data was erased. On July 8, 2010, Kaplan and K&S subs tituted in to represent Kitch in place of Albaum and B&G. On three occasions, Kitch requested the trial court impute income to Bram based on her forensic accounting expert ’s declaration that Bram had produced

insufficient financial inform ation for his law firm. On January 19, 2011, Bram filed an ex parte applica tion for an order compelling the return of his separate property funds, a nd Kitch and her attorneys stated that Kitch had exhausted Bram’s funds, but she had not. She began rapidly spending the funds. On4 January 21, 2011, Kitch levied upon Bram ’s personal and business bank accounts, representing that Bram owed $20,334.54 to he r. On February 2, 2011, the trial court issued an intermediary order direct ing Kitch to return $5,000 to Bram. On February 15, 2011, Bram filed a fraud action against Kitch based on these facts and false representations. The fraud actio n was coordinated with the dissolution proceeding on March 24, 2011. Kaplan and K&S filed Bram’s conf idential drug testing results without placing them under seal in order to harass and intimidate Bram. In July 2011, Kitch, Kapl an, and K&S testified that K itch had created the revenue summary for Bram’s law firm from summarie s of bills. Kaplan and K&S ultimately

returned the invoices. Albaum and B&G also produced a copy of the invoices. On August 30, 2011, Kaplan an d K&S substituted out as to the fraud action, and Kitch proceeded in the fraud action in pro per. Income and expense statements that Kitc h filed in December 2011 misrepresented Kitch’s expenses and assets. She stated that she owed Kaplan and K&S more than $269,428. In January 2012, Kitch filed a claim w ith the California Department of Child Support Services (DCSS) alleging child support arrearages of $131,238.50. She acknowledged that she had taken the funds bu t claimed she and Bram agreed that she

could have those funds if so mething went wrong, and Bram owed child support in

addition to the funds that she took. Bram’s driver’s license and license to practice law were eventually suspended as a resu lt of the claim made to DCSS. As of February 29, 2012, Kitch had incurred $328,924.13 in attorney fees owed to Kaplan and K&S, of which $59,496.13 had been paid. Kitch exhaus ted Bram’s separate property funds on April 1, 2012 . On April 6, 2012, Kaplan and K&S agreed to waive all legal fees due and owing as part of a se ttlement agreement between Bram and Kitch

entered into on the r ecord before the trial court. However, Kaplan and K&S received Bram’s separate property funds or other funds to which he had a claim with full knowledge of Bram’s claims, because as of April 25, 2012, Kitc h owed nothing to5 Kaplan or K&S. On June 1, 2012, Bram dismissed the fraud action against Kitch without prejudice. As a result of Kitch’s misconduct, she s hould have disgorged her entire salary for the period of her employment in the amount of $205,600, which defendants knew or reasonably should have known. Kitch deni es any repayment obligation and reneged on agreements to return misapprop riated funds. As a result, Bram had to borrow on credit cards, his credit rating dropped, and he was unable to secure financing. Defendants conspired with Kitch to depr ive Bram of the fiduciary duties Kitch

owed under California law and to defraud Bram. They aided and abetted Kitch’s violation of her fiduciary duties. They misr epresented to Bram and the trial court that Kitch had not used Bram’s separate proper ty funds. Defendants made unspecified defamatory statements about hi m. They were unjustly enrich ed by Kitch’s transfer of funds to them. Bram sought re stitution, disgorgement, and a constructive trust. Bram also sought damages of $990,628.

Anti-SLAPP Motions and Supporting Evidence

Kaplan and K&S filed an anti-SLAPP motion. They argued the anti-SLAPP statute applied, because Bram’s complain t was based entirely on Kaplan and K&S’s statements and conduct arising out of litigati on activity. They further argued that Bram could not demonstrate a probab ility of prevailing for severa l reasons, including that he entered into a settlement ag reement which included a re lease of known and unknown claims arising out of Kaplan and K&S’s representation of K itch. Kaplan and K&S also argued Bram lacked capacity to file the actio n on behalf of his minor daughter, because no guardian ad litem ha d been appointed. Kaplan and K&S attached the reporte r’s transcript of the global settlement agreement reached on Ap ril 6, 2012, in the dissolution ac tion in which Bram agreed to release claims known and unknown agains t Kaplan and K&S arising out of their6 representation of Kitch in th e dissolution action and the subject matter of Bram’s fraud action against Kitch.

Albaum and B&G also filed an anti-SL APP motion on the ground that Bram’s claims arose from litigation activity on beha lf of Kitch. Bram could not show a probability of prevailing, becau se the absolute litigation priv ilege barred his claims, Bram had not obtained a pre-filing orde r, and he lacked standing to sue on behalf of his minor daughter.

Opposition and Supporting Evidence

Bram filed an opposition to each of the anti-SLAPP moti ons on the ground that the claims were based on criminal conduct, wh ich is not protected activity under the antiSLAPP statute. He argued the core charging allegations were actions before Kitch hired attorneys in the dissolution action or immediat ely upon hiring them. Alternatively, Bram could show a probability of prev ailing on his claims that th e attorneys aided and abetted stealing his funds, knowingly received stol en funds, received and concealed stolen property of the law firm, and lied to the tria l court concerning the stolen property. He argued the litigation privilege did not apply, because defendants ’ statements were false. In support of his opposition, Bram submitted a brief declaration stating that all facts not otherwise supported by citations to the record or exhibits were true of his own personal knowledge. He also filed a request for the court to take judicial notice of a writ of

mandate and exhibits that he had previously filed in another case.

Replies and Trial Court Rulings

Kaplan and K&S filed a reply, as did Al baum and B&G. Both replies argued the gravamen of the complaint was protected activity representing Kitch, not criminal activity. In addition, they ar gued that once they had show n the complaint was based on protected activity, Bram had th e burden to show the alle ged conduct was illegal as a7 matter of law, and Bram failed to meet this burden. They asserted Bram had not provided

the trial court with a shred of evidence to support his claim of conspiracy, aiding and abetting, receipt of stolen property, or any other criminal conduct by B&G, or evidence Kitch engaged in misappropriation or fraud. In addition, Bram had not provided any admissible evidence to support a reasonable pr obability of prevailing on his claims. The cases he relied upon were distinguishable. Kaplan and K&S also noted Bram failed to address the settlement agreement releasi ng the claims in the dissolution action. Kaplan and K&S submitted the declara tion of Attorney Frances Ma that on August 24, 2012, the trial c ourt in the dissolution action en forced a settlement agreement pursuant to section 664.6, including Bram’s release of claims against K&S on his own

behalf and on behalf of the mi nor child arising from events pr ior to April 6, 2012, known or unknown, in connection w ith Kitch’s representation. Albaum and B&G filed objections to Bram ’s declaration and request for judicial notice. They argued, among other grounds, th at the trial court could not take judicial

notice of the contents of documents in anot her case to which they were not parties and which were not the contents of a judgment. On September 10, 2010, Bram filed an additional declaration and request for judicial notice. Albaum and B&G filed a motion to strike this additional oppos ition. On September 13, 2012 , the court sustained all of Albaum and B&G’s objections to Bram’s de claration and evidence. The court granted

their anti-SLAPP motion on the ground the conduct in connection with the dissolution proceeding was protected under the anti-SLAPP statute, and Bram had failed to show the litigation privilege did not apply. On September 20, 2012, the trial court similarly granted Kaplan and K&S’s antiSLAPP motion. Bram failed to submit relevant evidence to support his claims and failed to address the global settlement agreement reached in connection with the dissolution proceeding . The court also sustained Kaplan and K&S’s obj ections to Bram’s evidence. The trial court entered judgment in fa vor of Albaum, B&G, Kaplan, and K&S on October 10, 2012. Albaum and B&G filed a mo tion for an award of a ttorney fees, as did Kaplan and K&S. The court awarded attorney fees of $30,800 to Albaum and B&G and8 attorney fees of $19,250 to Kaplan and K&S. Bram filed a timely notice of appeal from the judgment.

DISCUSSION

Defendants contend Bram’s lawsuit is based on prot ected litigation activity, and therefore, the anti-SLAPP statute applies. Bram contends the allegations concerning litigation activity are merely incidental to th e allegations of criminal activity which are unprotected, and therefore, th e anti-SLAPP statute does not apply. We review the legal principles applicable to our analysis and ex amine each cause of action alleged in Bram’s complaint to determine whether the anti-SLAPP statute applies.

I. Statutory Scheme and Standard of Review

Section 425.16, subdivision (b)(1) provides : “A cause of action against a person arising from any act of that person in furthe rance of the person’s ri ght 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.” “The statute requires two steps for striking a cause of action. In the first step, the

court is tasked with determ ining whether the defendant ha s made a threshold showing that the challenged cause of action is one ‘a rising from protected activity.’ In this step, the moving defendant must dem onstrate that the acts upon which the plaintiff’s claim is

based were taken in furtherance of the defe ndant’s right of petition or free speech under

the federal or state Constitution. If the court finds this threshold showing has been made by the defendant, the court must then determin e whether the plaintiff has demonstrated a ‘probability of prevailing’ on his or her claim. ([See] Equilon Enterprises v. Consumer9 Cause, Inc. (2002) 29 Ca l.4th 53, 67 ( Equilon ).)” ( Gerbosi v. Gaims, Weil, West & Epstein, LLP (2011) 193 Cal.App.4th 435, 443 ( Gerbosi ).) We review an order granting or denying a motion to strike under section 425.16

under the de novo standard of review, applying the same two-step procedure as the trial court. ( Malin v. Singer (2013) 217 Cal.App.4th 1283, 1293; Gerbosi

, supra , 193 Cal.App.4th at p. 444.)

A. Protected Activity

“A cause of action ‘arising from protected activity’ means that the defendant’s acts underpinning the plaintiff’s caus e of action involved an exercise of the right of petition or free speech. [Citation.] . . . In determining wh ether the first step has been established, i.e., the ‘arising from’ elemen t of the anti-SLAPP statute, a court must consider the pleadings and any supporting and opposing affi davits stating the facts upon which alleged liability is based. [Citation.]” ( Gerbosi

, supra , 193 Cal.App.4th at p. 443.) Section 425.16, subdivision (e) sets forth four categories of speech or petitioning activity protected under the statute. An “‘ac t in furtherance of a person’s right of petition or free speech under the United States or Ca lifornia 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 fo rum in connection with an issue of public interest, or (4) any other conduct in furthera nce of the exercise of the constitutional right of petition or the constitutional right of free sp eech in connection with a public issue or an issue of public interest.”

In order for defendants to meet their burde n under the first prong, they do not need to prove their activity is c onstitutionally protected. ( Haight Ashbury Free Clinics, Inc. v.10 Happening House Ventures (2010) 184 Cal.App.4th 1539, 1548-1549 ( Haight Ashbury ) [allegations that defendants conspired to lie in depositions and pr esented false testimony were within the scope of anti-SLAPP statute]; Fox Searchlight Pictures, Inc. v. Paladino (2001) 89 Cal.App.4th 294, 305 [allegations we re within scope of anti-SLAPP statute, even though the defe ndant had no constitutional right to disclose privileged and

confidential information or re fuse to return materials to their rightful owner].) “Appellants need only show th at the activity falls within the scope of section 425.16, subdivision (e), by which the Legislature has se t forth the parameters of activity subject to the SLAPP protections. [Citation.]” ( Haight Ashbury

, supra , 184 Cal.App.4th at p. 1549.) “In general, whether a cause of action is subject to a motion to strike under the SLAPP statute turns on whether the gravamen of the cause of action targets protected activity. (See City of Cotati v. Cashman (2002) 29 Cal.4th 69, 79.) If liability is not based on protected activity, the cause of acti on does not target the protected activity and is therefore not subject to the SLAPP statute. ( Ibid; see Episcopal Church Cases (2009) 45 Cal.4th 467, 478 [allegation that ‘lurk[s] in the backgr ound’ to explain why a rift between the parties arose]; United States Fire Ins. Co. v. Sheppard, Mu llin, Richter & Hampton LLP (2009) 171 Cal.App.4th 1617, 1628 [allegations about a law firm’s protected communications for pur poses of showing the firm had a conflict of interest]; Scott v. Metabolife Internat., Inc. (2004) 115 Cal.App.4th 404 , 414-417 [defendant’s advertising activity was merely incidental to plaintiff’s causes of action for personal injury, where liability for those claims was based not on the advertising but on the product’s failure to conform to the defe ndant’s warranties and statements].)” ( Haight Ashbury, supra , 184 Cal.App.4th at p. 1550.) “Where, as here, a cause of action is based on both prot ected activity and unprotected activity, it is subject to secti on 425.16 ‘“unless the protected conduct is ‘merely incidental’ to the unprotected conduct.”’ ( Peregrine Funding, Inc. v. Sheppard Mullin Richter & Hampton LLP (2005) 133 Cal.App.4th 658, 672 ( Peregrine Funding ) [first prong of SLAPP analysis met where th e allegations of loss resulting from protected11 activity were not merely incidental or collateral to unprotected activity]; see Mann v. Quality Old Time Service, Inc. (2004) 120 Cal. App.4th 90, 104 ( Mann ) [because the defendants’ reports to government agencies fo rmed a substantial part of the factual basis for defamation and trade libel claims, the clai ms were subject to the SLAPP statute even though also based on nonpro tected statements].)” ( Haight Ashbury, supra , 184 Cal.App.4th at p. 1551, fn. omitted.) “[S]ection 425.16 cannot be invoked by a defendant whose asse rtedly protected activity is illegal as a matter of law and, fo r that reason, not protected by constitutional guarantees of free speech and petition.” ( Flatley v. Mauro (2006) 39 Cal.4th 299, 317 ( Flatley ).) “[W]hen a defendant’s a ssertedly protected activity may or may not be criminal activity, the defendant may invoke the anti-SLAPP st atute unless the activity is

criminal as a matter of law. In coming to this result, the Supreme Court observed that an activity could be deemed cr iminal as a matter of law when a defendant concedes criminality, or the evidence conclusively s hows criminality. At the same time, the Supreme Court cautioned that a defendant’s ‘ mere assertion that his [or her] underlying activity was constitutionally prot ected’ will not suffice to shif t to the plaintiff the burden of showing that the defendant ’s underlying activity was cr iminal, and not constitutionally protected. ( Flatley, supra, 39 Cal.4th at p. 317, italics added.) As the Supreme Court aptly concluded, such a rule would ‘eviscerat e the first step of th e two-step inquiry set forth in the [anti-SL APP] statute.’ ( Ibid. ) ‘While a defendant need only make a prima facie showing that the underlying activity falls within the ambit of the statute, . . . the

statute envisions that the courts do more than simply rubberstamp su ch assertions before moving on to the second step.’ ( Ibid. )” ( Gerbosi

, supra , 193 Cal.App.4th at p. 446.) “[O]nce the defendant has made the required threshold showing that the challenged action arises from assertedly prot ected activity, the plaintiff may counter by demonstrating that the underl ying action was illegal as a matte r of law because either the defendant concedes the illegality of the assert edly protected activity or the illegality is conclusively established by the evidence presented in co nnection with the motion to12 strike.” ( Soukup v. Law Offices of Herbert Hafif (2006) 39 Cal.4t h 260, 286-287 ( Soukup ).)

B. Probability of Prevailing

“To satisfy the second prong, ‘a plain tiff responding to an anti-SLAPP motion must “‘state[] and substantiate[] a legally sufficient claim.’” [Citation.] Put another way, the plaintiff “must demonstrate that the comp laint is both legally su fficient and supported by a sufficient prima facie show ing of facts to sustain a favorable judgment if the evidence submitted by the plai ntiff is credited.”’ ( Wilson v. Parker, Covert & Chidester (2002) 28 Cal.4th 811, 821.) ‘We consider “the pleadings , and supporting and opposing affidavits . . . upon which the liability or defe nse is based.” (§ 425.16, subd. (b)(2).) However, we neither “weigh credibility, [nor] compare the weight of the evidence. Rather, [we] accept as true the evidence favorable to the plai ntiff [citation] and evaluate the defendant’s evidence only to determine if it has defe ated that submitted by the plaintiff as a matter of law.”’ ( Soukup [ , supra, ] 39 Cal.4th at p. 269, fn. 3.) If the plaintiff ‘can show a pr obability of prevailing on any part of its claim, the cause of action

is not meritless’ and will not be stricken ; ‘once a plaintiff shows a probability of prevailing on any part of its claim, the plaintiff has established that its cause of action has some merit and the entire cause of action stands.’ ( Mann [, supra ,] 120 Cal.App.4th [at p.] 106, original italics.)” ( Oasis West Realty, LLC v. Goldman (2011) 51 Cal.4th 811, 820.)

II. Breach of Fiduciary Duty

We conclude Bram’s cause of action for breach of fiduciary duty includes multiple claims, at least one of which is based on protected litigation activity. The complaint alleged the following. K itch owed fiduciary duties to Bram as a result of her employment and their marital re lationship. Defendant s and Kitch conspired13 to deprive Bram of the benefit of her fiducia ry duties. Bram justifiably relied on their representations and was damaged. Th e acts and omissions were designed and implemented to deprive Bram of his separate property estate and undermine the policies

of the trial court. Defendant s knowingly aided and abetted K itch in violating every duty owed by Kitch in the management of communi ty and separate property. They interfered with his receipt of support credits and mani pulated DCSS to institute meritless collection efforts. The legal positions taken concerning his separate property funds, the DCSS claims, Marvin claims, 2 filing unsealed confidential dr ug tests, and attorney-client conflicts were part of a malicious attempt to litigate and intimidate Br am to capitulate. By directly or indirectly misappropriating Bram’s funds and confidential information, then using the information to Bram’s detrim ent, Kitch and the atto rneys breached their respective primary fiduciary duties. Kitch, with the knowledge of the attorneys, exercised unauthorized management and cont rol over Bram’s sepa rate property assets and altered the investments without Bram’s co nsent. Kitch and the attorneys breached fiduciary duties owed to Bram through unilateral transfer s to misappropriate Bram’s separate property assets for the ga in of Kitch and the attorneys. Bram alleged defendants aided and abette d Kitch’s breach of her fiduciary duties by, among other acts, taking certain legal po sitions and using confid ential information in litigation. These allegations are not merely in cidental to the allegations that Kitch took control of Bram’s separate property funds a nd the law firm’s confidential information. The litigation activities are alleged as a basis for liability. These activities clearly fall within the protected activities set forth in section 425.16. Therefore, the trial court correctly concluded the anti-SLAPP statute a pplies to the cause of action for breach of fiduciary duty. Taking legal positions and using confidentia l information in litigation are

not criminal activities as a matter of law.

2 Marvin v. Marvin (1976) 18 Cal.3d 660.14 Turning to the seco nd prong of the analysis, Bram has not shown a probability of prevailing on his claim. He did not submit any admissible evidence to satisfy the probability of prevailing prong and do es not argue otherwise on appeal.

III. Fraud and Intentional Misrepresentation

Bram similarly alleged multiple misreprese ntations as the basis for his cause of action for fraud and intentional misrepresent ation against Kaplan and K&S, most of which consisted of protected litigation activity.

Bram’s cause of action for fraud and inte ntional misrepresentation alleged Kaplan

and K&S made statements to Br am that Kitch would not use the funds in their control, misrepresented the source of financial informa tion in the trial court to conceal Kitch’s use of confidential documents, delayed resolution of property characterization to allow Kitch to exhaust Bram’s separate funds, repeatedly represented that Kitch had not spent the funds in order to obtain supp ort payments, misrepresented Kitch’s income and expenses on documents filed with the court, and misrep resented that the funds were exhausted. Most of the alleged misrepresentations concern litigation activities protected under section 425.16, and therefore, the trial court properly found the anti-SLAPP statute applied. Bram did not submit evidence to establish a probability of prevailing on this

cause of action.

IV. Negligence and Neg ligent Misrepresentation

Bram’s cause of action for negligence and negligent misrepresentation relies on the same representations as his cause of action for intentional misrepresentation. Therefore, the cause of action is based at le ast in part on protected activities, and the antiSLAPP statute applies equally to this cause of action. No probability of prevailing has

been shown.15 V. Abuse of Process

Bram’s cause of action for abuse of pr ocess relies on defendants’ use of legal process. This cause of action clearly falls into the protected activ ities enumerated by the statute, and Bram has not show n a probability of prevailing.

VI. Defamation

The complaint contains a cause of action against Kaplan and K& S for defamation. It is Bram’s burden on appeal to demonstrate reversible error. To the extent the cause of

action relies on statements made in connection with legal proceedings, these are clearly protected under section 425.16. Bram has not argued otherwise on appeal. Bram did not

submit admissible evidence to satisfy the probability of prevailing prong as to the defamation cause of action, and therefore, su mmary judgment was properly granted as to

this cause of action.

VII. Unfair Business Practices

This cause of action is incomprehensible . Bram alleges defendants’ actions are defamatory on their face. The actions constitu te a trade practice, because the statements were made by defendants about another atto rney, impugning his in tegrity in the same profession, and concerne d the ethics, mental stability, and regulated practices that Bram employed in his trade. Defe ndants submitted false and fraudulent invoices to Kitch and took positions in the litigation that constituted an unfair business practice. Although Bram’s cause of ac tion for unfair business practic es is not coherent, it is clearly based in part on statements made by th e attorneys in the cour se of litigation. The anti-SLAPP statute applies, and Bram has not shown a probability of prevailing on this

cause of action.16 VIII. Conspira cy to Defraud

The cause of action for conspiracy to de fraud relies on allegations that defendants agreed to mislead Bram and the trial court abou t Kitch’s use of Bram’s funds to engage in protracted litigation. This also concerns ac tivity protected under the anti-SLAPP statute,

and Bram has not submitted evidence to show a probability of prevailing.

IX. Constructive Trust and Unjust Enrichment

Bram’s causes of action for constructive tr ust and unjust enrichment seek remedies for the causes of action previously alleged. Since he failed to show a probability of prevailing as to those causes of action, the allegations of constr uctive trust and unjust enrichment are properly stricken as well.

DISPOSITION

The judgment is affirmed. Costs on appeal are awarded to defendants and respondents.

KRIEGLER, J.

We concur:

TURNER, P. J. MOSK, J.