Filed 2/26/14 Bram v. Kaplan CA2/5 

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS 

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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 Rosenberg, Judge. Affirmed. 

 Adam Scott Bram, in pro. per., and 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 Bram, on behalf of himself, his law firm 

(Law Offices of Adam Scott Bram), and Penelope Joe Bram, a minor, appeal from a 

judgment in favor of defendants and respondents Mark Vincent Kaplan, Kaplan & 

Simon, L.L.P. (K&S), Shelley 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 criminal 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; therefore, the trial court properly 

applied the statute. Bram did not submit admissible evidence to show a probability of 

prevailing on any of his claims. Therefore, we affirm. 

FACTS AND PROCEDURAL HISTORY 

Allegations of the Complaint 

 On June 1, 2012, Bram filed a 57-page complaint against defendants for breach of 

fiduciary duty, negligent misrepresentation, abuse of process, unfair business practices, 

unjust enrichment, conspiracy to defraud, and a declaration of constructive trust. The 

complaint alleged additional causes of action against Kaplan and K&S for intentional 

misrepresentation and defamation. 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 March 7, 2008, Bram loaned more 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 notice of the appellate record in his dissolution 

action, case No. B245554, is granted. 
3

which she has not repaid. Bram and Kitch 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, Kitch began consulting with attorneys B&G and Albaum as 

to the nature of the funds and the amounts to seize. Kitch took $512,679.49 from the 

accounts. By the date of separation on February 10, 2010, Kitch had transferred all of 

Bram’s separate funds. Defendants conspired with Kitch to take the separate property 

funds and use them to pay defendants for Kitch’s child custody litigation. 

 Immediately after, Kitch, Albaum, and B&G assured Bram that Kitch would 

comply with the Family Law Automatic Temporary Restraining Orders by not using his 

separate property funds over which she had asserted 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 support 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-product 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 access 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 substituted 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 information for his law firm. 

 On January 19, 2011, Bram filed an ex parte application for an order compelling 

the return of his separate property funds, and Kitch and her attorneys stated that Kitch 

had exhausted Bram’s funds, but she had not. She began rapidly spending the funds. On 
4

January 21, 2011, Kitch levied upon Bram’s personal and business bank accounts, 

representing that Bram owed $20,334.54 to her. On February 2, 2011, the trial court 

issued an intermediary order directing 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 action was coordinated with the dissolution 

proceeding on March 24, 2011. Kaplan and K&S filed Bram’s confidential drug testing 

results without placing them under seal in order to harass and intimidate Bram. 

 In July 2011, Kitch, Kaplan, and K&S testified that Kitch had created the revenue 

summary for Bram’s law firm from summaries 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 and K&S substituted out as to the fraud action, and Kitch 

proceeded in the fraud action in pro per. 

 Income and expense statements that Kitch 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 with the California Department of Child 

Support Services (DCSS) alleging child support arrearages of $131,238.50. She 

acknowledged that she had taken the funds but claimed she and Bram agreed that she 

could have those funds if something 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 result 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 exhausted 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 settlement agreement between Bram and Kitch 

entered into on the record 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, Kitch owed nothing to 
5

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 should 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 denies any repayment obligation and reneged on 

agreements to return misappropriated 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 deprive 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 misrepresented to Bram and the trial court that 

Kitch had not used Bram’s separate property funds. Defendants made unspecified 

defamatory statements about him. They were unjustly enriched by Kitch’s transfer of 

funds to them. Bram sought restitution, 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 complaint was based entirely on Kaplan and K&S’s 

statements and conduct arising out of litigation activity. They further argued that Bram 

could not demonstrate a probability of prevailing for several reasons, including that he 

entered into a settlement agreement which included a release of known and unknown 

claims arising out of Kaplan and K&S’s representation of Kitch. Kaplan and K&S also 

argued Bram lacked capacity to file the action on behalf of his minor daughter, because 

no guardian ad litem had been appointed. 

 Kaplan and K&S attached the reporter’s transcript of the global settlement 

agreement reached on April 6, 2012, in the dissolution action in which Bram agreed to 

release claims known and unknown against Kaplan and K&S arising out of their 
6

representation of Kitch in the dissolution action and the subject matter of Bram’s fraud 

action against Kitch. 

 Albaum and B&G also filed an anti-SLAPP motion on the ground that Bram’s 

claims arose from litigation activity on behalf of Kitch. Bram could not show a 

probability of prevailing, because the absolute litigation privilege barred his claims, Bram 

had not obtained a pre-filing order, 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 motions on the ground that the 

claims were based on criminal conduct, which 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 immediately upon hiring them. Alternatively, Bram 

could show a probability of prevailing on his claims that the attorneys aided and abetted 

stealing his funds, knowingly received stolen funds, received and concealed stolen 

property of the law firm, and lied to the trial 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 Albaum and B&G. Both replies argued the 

gravamen of the complaint was protected activity representing Kitch, not criminal 

activity. In addition, they argued that once they had shown the complaint was based on 

protected activity, Bram had the burden to show the alleged conduct was illegal as a 
7

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 probability 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 releasing the claims in the dissolution action. 

 Kaplan and K&S submitted the declaration of Attorney Frances Ma that on 

August 24, 2012, the trial court in the dissolution action enforced 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 minor child arising from events prior to April 6, 2012, known 

or unknown, in connection with Kitch’s representation. 

 Albaum and B&G filed objections to Bram’s declaration and request for judicial 

notice. They argued, among other grounds, that the trial court could not take judicial 

notice of the contents of documents in another 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 opposition. On September 13, 2012, the court sustained all of 

Albaum and B&G’s objections to Bram’s declaration 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 objections to Bram’s evidence. 

 The trial court entered judgment in favor of Albaum, B&G, Kaplan, and K&S on 

October 10, 2012. Albaum and B&G filed a motion for an award of attorney fees, as did 

Kaplan and K&S. The court awarded attorney fees of $30,800 to Albaum and B&G and 
8

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 protected litigation activity, and 

therefore, the anti-SLAPP statute applies. Bram contends the allegations concerning 

litigation activity are merely incidental to the allegations of criminal activity which are 

unprotected, and therefore, the anti-SLAPP statute does not apply. We review the legal 

principles applicable to our analysis and examine 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 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.” 

 “The statute requires two steps for striking a cause of action. In the first step, the 

court is tasked with determining whether the defendant has made a threshold showing 

that the challenged cause of action is one ‘arising from protected activity.’ In this step, 

the moving defendant must demonstrate that the acts upon which the plaintiff’s claim is 

based were taken in furtherance of the defendant’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 determine whether the plaintiff has demonstrated a 

‘probability of prevailing’ on his or her claim. ([See] Equilon Enterprises v. Consumer 
9

Cause, Inc. (2002) 29 Cal.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 cause of action involved an exercise of the right of petition or 

free speech. [Citation.] . . . In determining whether the first step has been established, 

i.e., the ‘arising from’ element of the anti-SLAPP statute, a court must consider the 

pleadings and any supporting and opposing affidavits 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 “‘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.” 

 In order for defendants to meet their burden under the first prong, they do not need 

to prove their activity is constitutionally 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 presented false testimony 

were within the scope of anti-SLAPP statute]; Fox Searchlight Pictures, Inc. v. Paladino

(2001) 89 Cal.App.4th 294, 305 [allegations were within scope of anti-SLAPP statute, 

even though the defendant had no constitutional right to disclose privileged and 

confidential information or refuse to return materials to their rightful owner].) 

“Appellants need only show that the activity falls within the scope of section 425.16, 

subdivision (e), by which the Legislature has set 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 action 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 background’ to explain why a rift 

between the parties arose]; United States Fire Ins. Co. v. Sheppard, Mullin, Richter & 

Hampton LLP (2009) 171 Cal.App.4th 1617, 1628 [allegations about a law firm’s 

protected communications for purposes 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 defendant’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 protected activity and 

unprotected activity, it is subject to section 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 the allegations of loss resulting from protected 
11

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 formed a substantial part of the factual basis 

for defamation and trade libel claims, the claims were subject to the SLAPP statute even 

though also based on nonprotected statements].)” (Haight Ashbury, supra, 184 

Cal.App.4th at p. 1551, fn. omitted.) 

 “[S]ection 425.16 cannot be invoked by a defendant whose assertedly protected 

activity is illegal as a matter of law and, for 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 assertedly protected activity may or may not be

criminal activity, the defendant may invoke the anti-SLAPP statute 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 criminal as a matter of law when a defendant concedes 

criminality, or the evidence conclusively shows criminality. At the same time, the 

Supreme Court cautioned that a defendant’s ‘mere assertion that his [or her] underlying 

activity was constitutionally protected’ will not suffice to shift to the plaintiff the burden 

of showing that the defendant’s underlying activity was criminal, and not constitutionally 

protected. (Flatley, supra, 39 Cal.4th at p. 317, italics added.) As the Supreme Court 

aptly concluded, such a rule would ‘eviscerate the first step of the two-step inquiry set 

forth in the [anti-SLAPP] 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 such 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 protected activity, the plaintiff may counter by 

demonstrating that the underlying action was illegal as a matter of law because either the 

defendant concedes the illegality of the assertedly protected activity or the illegality is 

conclusively established by the evidence presented in connection with the motion to 
12

strike.” (Soukup v. Law Offices of Herbert Hafif (2006) 39 Cal.4th 260, 286-287 

(Soukup).) 

 B. Probability of Prevailing 

 “To satisfy the second prong, ‘a plaintiff responding to an anti-SLAPP motion 

must “‘state[] and substantiate[] a legally sufficient claim.’” [Citation.] Put another way, 

the plaintiff “must demonstrate that the complaint is both legally sufficient and supported 

by a sufficient prima facie showing of facts to sustain a favorable judgment if the 

evidence submitted by the plaintiff 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 defense 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 plaintiff [citation] and evaluate 

the defendant’s evidence only to determine if it has defeated 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 probability 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. Kitch owed fiduciary duties to Bram as a 

result of her employment and their marital relationship. Defendants and Kitch conspired 
13

to deprive Bram of the benefit of her fiduciary duties. Bram justifiably relied on their 

representations and was damaged. The acts and omissions were designed and 

implemented to deprive Bram of his separate property estate and undermine the policies 

of the trial court. Defendants knowingly aided and abetted Kitch in violating every duty 

owed by Kitch in the management of community and separate property. They interfered 

with his receipt of support credits and manipulated DCSS to institute meritless collection 

efforts. The legal positions taken concerning his separate property funds, the DCSS 

claims, Marvin claims,2 filing unsealed confidential drug tests, and attorney-client 

conflicts were part of a malicious attempt to litigate and intimidate Bram to capitulate. 

By directly or indirectly misappropriating Bram’s funds and confidential information, 

then using the information to Bram’s detriment, Kitch and the attorneys breached their 

respective primary fiduciary duties. Kitch, with the knowledge of the attorneys, 

exercised unauthorized management and control over Bram’s separate property assets 

and altered the investments without Bram’s consent. Kitch and the attorneys breached 

fiduciary duties owed to Bram through unilateral transfers to misappropriate Bram’s 

separate property assets for the gain of Kitch and the attorneys. 

 Bram alleged defendants aided and abetted Kitch’s breach of her fiduciary duties 

by, among other acts, taking certain legal positions and using confidential information in 

litigation. These allegations are not merely incidental to the allegations that Kitch took 

control of Bram’s separate property funds and 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 applies to the cause of action for breach of 

fiduciary duty. Taking legal positions and using confidential 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 second 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 does not argue otherwise on appeal. 

III. Fraud and Intentional Misrepresentation 

 Bram similarly alleged multiple misrepresentations as the basis for his cause of 

action for fraud and intentional misrepresentation against Kaplan and K&S, most of 

which consisted of protected litigation activity. 

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

and K&S made statements to Bram that Kitch would not use the funds in their control, 

misrepresented the source of financial information 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 support payments, misrepresented Kitch’s income and expenses 

on documents filed with the court, and misrepresented 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 Negligent 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 least 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 process relies on defendants’ use of legal 

process. This cause of action clearly falls into the protected activities enumerated by the 

statute, and Bram has not shown 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, summary 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 constitute a trade practice, because the statements 

were made by defendants about another attorney, impugning his integrity in the same 

profession, and concerned the ethics, mental stability, and regulated practices that Bram 

employed in his trade. Defendants submitted false and fraudulent invoices to Kitch and 

took positions in the litigation that constituted an unfair business practice. 

 Although Bram’s cause of action for unfair business practices is not coherent, it is 

clearly based in part on statements made by the attorneys in the course of litigation. The 

anti-SLAPP statute applies, and Bram has not shown a probability of prevailing on this 

cause of action. 
16

VIII. Conspiracy to Defraud 

 The cause of action for conspiracy to defraud relies on allegations that defendants 

agreed to mislead Bram and the trial court about Kitch’s use of Bram’s funds to engage in 

protracted litigation. This also concerns activity 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 trust 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 constructive 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.