Zand v. Sukumar (2026)

Case details
Country
United States
Jurisdiction
California (CA)
Court
California Supreme Court
Decided
2026
Disposition
Motion Denied
Majority
Streeter (J.) (unanimous Court)
Zand v. Sukumar, --- Cal.Rptr.3d ---- (2026) © 2026 Thomson Reuters. No claim to original U.S. Government Works.12026 WL 1004880Only the Westlaw citation is currently available.Court of Appeal, First District, Division 4, California.Afshin ZAND, Cross-Complainant and Appellant,v.Ponani SUKUMAR, Cross-Defendant and Respondent.A171273|Filed 4/14/2026Trial Court: Superior Court of California, County of Alameda,Trial Judge: Hon. Julia Spain (Alameda County Super. Ct. No.RG20064932)Attorneys and Law FirmsAfshin Zand, in pro. per., for Appellant.Friedhofer PC, James E. Friedhofer; Knottnerus &Associates, Willfred Knottnerus and Mark B. Simpkins forRespondent.OpinionSTREETER, J.*1 Afshin Zand, representing himself, appeals from anorder awarding attorney's fees against him under Code ofCivil Procedure section 425.16, subdivision (c)(1) (all furtherundesignated code references are to the Code of CivilProcedure).In a prior appeal, we affirmed an order dismissing Zand'scross-complaint in an action filed by Ponani Sukumar andawarding Sukumar the attorney's fees he incurred to obtain thedismissal. (See Zand v. Sukumar (Feb. 29, 2024, A163376)2024 WL 860713 [nonpub. opn.] (Zand I).) Our opinionawarded Sukumar additional attorney's fees incurred onappeal, with the amount to be determined on remand.In this second appeal, we affirm again, seeing no merit toZand's arguments attacking the attorney's fees order enteredon remand. We reject each of Zand's assertions of error asbaseless and again order him to pay Sukumar's attorney's fees,this time for the present appeal. We also impose sanctions forthe pursuit of a frivolous appeal.I. BACKGROUND“On June 15, 2020, Sukumar initiated the present actionby filing a complaint against Zand, asserting several causesof action, including breach of contract, unjust enrichment,intentional and negligent misrepresentation, and unfaircompetition.” (Zand I, supra, A163376.) Zand filed a cross-complaint against Sukumar. “[T]he trial court (Hon. DennisHayashi) struck [Zand's] cross-complaint ... under the anti-SLAPP (strategic lawsuit against public participation) statute(Code Civ. Proc., § 425.16),” and awarded attorney's fees toSukumar under section 425.16, subdivision (c)(1). (Zand I,supra, A163376.)Zand appealed in Zand I, contending “reversal [was]warranted because,” among other things, “Sukumar'sunderlying complaint against [him] contained falsehoods andperjury.” (Zand I, supra, A163376.) We found the Zand Iappeal to be meritless and affirmed the dismissal of the cross-complaint as well as the attorney's fees order. (Ibid.) We alsogranted a motion by Sukumar for attorney's fees incurredon appeal. (Ibid.) On remand, the trial court (Judge Spain)granted Sukumar's fee request in part, awarding $41,580 infees.1Zand filed a timely appeal.II. DISCUSSIONRather than present a challenge to Judge Spain's attorney'sfees order on the ground that the amount of fees isunsupported or unreasonable, Zand attempts to attackSukumar's entitlement to fees by claiming that Judge Hayashidid not actually grant Sukumar's anti-SLAPP motion ordid not do so effectively. He makes a variety of other,equally unusual arguments. For example, he contends thatno amount of fees is compensable because, by filing anotice of errata alerting us to some incorrect record citationsin the respondent's brief in Zand I and failing to file amotion seeking to file an amended brief, Sukumar effectivelywithdrew his respondent's brief, so “no attorney work wasdone.” According to Zand, our opinion in Zand I not onlyawarded attorney's fees for zero compensable work, but failedto recognize each of the trial judges who ruled against him inthis case lacked jurisdiction to do so, and therefore so did wein deciding Zand I.
Zand v. Sukumar, --- Cal.Rptr.3d ---- (2026) © 2026 Thomson Reuters. No claim to original U.S. Government Works.2*2 Zand's arguments are all aggressively creative but not oneof them has a shred of merit. Because he asserts claims of errorhe failed to raise in Zand I or that we rejected in that appeal,explicitly or implicitly, he seeks to collaterally attack the ordergranting Sukumar's anti-SLAPP motion and our now finalopinion affirming it. Zand had his opportunity in Zand I tocontest Sukumar's entitlement to attorney's fees under section425.16, subdivision (c)(1), and he lost. We decline to revisitthat issue. Sukumar points out, and we agree, that Zand'sattempt to circle back and mount a fresh attack on JudgeHayashi's anti-SLAPP ruling is either foreclosed by the lawof the case doctrine (City of Santa Paula v. Narula (2003) 114Cal.App.4th 485, 491–492, 8 Cal.Rptr.3d 75) or is based onnonappealable judicial disqualification arguments that, evenif they had arguable merit, should have been pursued by writreview years ago. (§ 170.3, subd. (d).)A.1.We begin with a step-by-step chronology of the principalissue Zand focuses upon, an issue at the root of many of hisarguments: His assertion that Judge Hayashi never actuallyentered an order resolving Sukumar's anti-SLAPP motion.Judge Hayashi held a hearing on Sukumar's anti-SLAPPmotion and took the motion under submission on February17, 2021. In a reasoned order signed and dated February 23,2021, adhering to a tentative ruling that was published andcontested, Judge Hayashi granted the anti-SLAPP motion,awarded attorney's fees to Sukumar, and ordered Zand's cross-complaint dismissed with prejudice. Despite being signedand dated February 23, 2021, the order bears a file stampindicating it was filed on April 23, 2021.Although Sukumar served and filed a Notice of Entry ofOrder attaching the file-stamped order on April 30, 2021,there appears to have been some confusion about who hadthe obligation to serve the order once it was filed—Sukumar,or the court clerk.2 On April 26, 2021, Sukumar filed an exparte request asking that the court clerk serve the order. Butany confusion over service was cleared up by early May. Thecourt's minutes of May 6, 2021 indicate that Sukumar's April26, 2021 ex parte application was “dropped.”3 The droppingof the April 26, 2021 ex parte request makes sense since, bythe time the May 6, 2021 order was entered, the order grantingthe anti-SLAPP motion had been filed, Sukumar had serveda notice of its entry, and the matter of service of the order hadbecome moot.Zand offers a more sinister interpretation of the record. Inhis view, the order dated February 23, 2021 and file-stampedApril 23, 2021 was just a “draft.” He claims that Sukumar'scounsel improperly obtained this “draft” and attached it to theApril 30, 2021 Notice of Entry of Order, fraudulently makingit look like the anti-SLAPP motion was granted, when it neveractually was. Because the Register of Actions (ROA)4 doesnot show any entry on April 23, 2021, Zand claims no suchorder was actually filed on April 23, 2021. His explanationfor how the order came to be file-stamped is that Sukumar'scounsel “manipulated the clerk” into filing it.5*3 The main item of “proof” for Zand's suggestion thatthere was no order granting Sukumar's anti-SLAPP motionis a digital image pasted into his opening brief, unsupportedby any record citation, depicting what appears to be afragmentary excerpt from the ROA. The image seems toshow five entries in the ROA for items spanning the daterange April 21, 2021 through April 26, 2021, with nothingshown for April 23, 2021. We decline to infer an affirmativejudicial act—the denial of a dispositive motion—from theabsence of an entry in the ROA, particularly since an ROAentry for February 23, 2021 does state “Motion to StrikeGranted.” Zand fails to cite or mention the February 23, 2021ROA entry, relying instead on a digital image of unknownprovenance that provides an incomplete picture of docketactivity during the relevant timeframe.We see no record support for Zand's contention that JudgeHayashi changed his mind and, without saying anything,decided to deny Sukumar's anti-SLAPP motion rather thangrant it. To support this peculiar reading of the record, Zandpoints to two orders by Judge Hayashi, the May 6, 2021 orderdropping Sukumar's April 26, 2021 ex parte application fromthe calendar, and another order on April 28, 2021 denyingthe same ex parte request.6 But even if it is the case thatthe court inexplicably ruled on the same ex parte requesttwice, that would not matter. Zand reads far more into thesetwo cryptic orders than they will bear, especially given theusual presumption of regularity that guides our interpretationof any trial court record. Based on the full chronology ofprocedural events shown by the record, we conclude that,although there was a delay of some weeks after Judge Hayashisigned the order granting Sukumar's anti-SLAPP motion onFebruary 23, 2021, the order was eventually filed on April 23,
Zand v. Sukumar, --- Cal.Rptr.3d ---- (2026) © 2026 Thomson Reuters. No claim to original U.S. Government Works.32021, as definitively indicated by the file-stamp. Whateverambiguities might arise from the ROA, the court clerk'sofficial act of filing the order as shown by the endorsed-filedstamp is the best evidence of the order's entry. (See Cal. Rulesof Court, rule 8.104(c)(2) [the entry date of an appealableorder that is entered in the minutes and directs preparation ofa written order is “the date the signed order is filed”]; cf. §668.5 [in counties that enter judgments in a register of actions,the date of filing a judgment with the clerk shall constitutethe date of its entry]; Filipescu v. California Housing FinanceAgency (1995) 41 Cal.App.4th 738, 741, 48 Cal.Rptr.2d 736[rejecting argument that “because the register of actions ...fails to indicate the judgment was in fact entered, the time forfiling the notice of appeal has not yet expired”].)Thus, as we stated in Zand I, and we repeat, “the trial courtgranted the [anti-SLAPP] motion in an order filed on April 23,2021.” (Zand I, supra, A163376.) There is not and there neverwas any reasonable debate about whether Judge Hayashisigned an order granting Sukumar's anti-SLAPP motion orabout whether his order was filed. The exact timing of filingand service is immaterial—since there is no issue here aboutthe timeliness of the appeal—and even if there were someperipheral relevance to the dates of these events, Zand hasprovided only a few selected bits and pieces of the recordfrom the relevant time period that, at most, might create someuncertainty around why the date recorded in the ROA forthe order (February 23, 2021) does not match the date theorder was officially marked as filed (April 23, 2021). Theexplanation for that mismatch is not clear. But rather thanindulge Zand's theory of skullduggery and deceit, we think thebest reading of the record is simple and straightforward—theorder signed by Judge Hayashi on February 23, 2021 was filedby the court clerk on April 23, 2021 and served by Sukumar onApril 30, 2021. The ex parte activity Zand relies upon to tell adifferent story shows nothing more than some administrativedelay in the filing of the order, apparently complicated by abit of confusion over who was responsible to serve the orderonce it was filed.*4 Obstinately refusing to accept the finality of the April 23,2021 order following its affirmance in Zand I, Zand seemsto think that the lack of clarity in the record concerning whyit took until April 23, 2021 for the order granting the anti-SLAPP motion to be filed gives him a magic-bullet legalargument that will change everything. He builds this argumenton the speculative reading of the record we have just rejected.The file-stamped order of April 23, 2021, according to Zand,is void, and as a result, (1) this court's opinion in Zand I isvoid, (2) this court's ruling on fees in Zand I granting appellateattorney fees and remanding for the trial court to determinethe amount is void, and (3) Judge Spain's order on remandawarding the appellate fees is also void.7 In Zand's reading ofwhat happened, Judge Hayashi implicitly denied Sukumar'santi-SLAPP motion and never entered an order so stating.He believes we affirmed an order in Zand I that does notexist. And for Sukumar to serve an order granting the motion,according to Zand, is a fraud that has never been addressed.This argument, with its Alice in Wonderland quality, is afamiliar one. In Zand I, the contention that Judge Hayashi“Refused To Post Order Under Appeal, And ‘Dropped’ It”was one of 14 scattershot arguments Zand made; he devotedthree paragraphs to it in his 54-page opening brief. Weconsidered the argument to be so outlandish as to be unworthyof discussion, factually or legally. In our Zand I opinion,we summarily disposed of this and several other whollyunsupportable arguments made by Zand, and we were explicitabout having done so, noting at the conclusion of our analysis,“We have considered the remaining arguments in Zand'sappellate briefs and find no basis for reversal.” (Zand I,supra, A163376.) But let there be no doubt: By rejecting theappeal in Zand I, we implicitly rejected the “no valid order”argument, and we give the argument no greater credence now.It has not improved with time.2.Some of Zand's voidness arguments do not depend on theclaim that Judge Hayashi failed to enter a valid order grantingSukumar's anti-SLAPP motion. He makes four groups ofadditional arguments that head off in different directions, buteventually come back to the same voidness idea or somevariation of it.First, picking up on an argument made for the first time inhis petition for rehearing in Zand I, Zand argues that dueto “[Sukumar's] Notice of Errata” which sought to correctcertain mistakes in his responding brief in Zand I, that briefwas “nullified” and “void,” which meant that, since no motionto amend the respondent's brief in Zand I was filed, “noRespondent Brief effectively was filed and no attorney workwas done, [so] naturally no attorney fees incurred.”Second, Zand claims that his section 170.6 challenge seekingdisqualification of Judge Hayashi was erroneously denied inMarch 2021, and that Judge Schwartz, who was assigned to
Zand v. Sukumar, --- Cal.Rptr.3d ---- (2026) © 2026 Thomson Reuters. No claim to original U.S. Government Works.4the case at some later point, was the subject of an erroneouslygranted section 170.6 challenge. Judge Spain's assignmentto the case, in Zand's view, was improper because JudgeSchwartz was not validly recused, which, according to Zand,rendered the attorney's fees order by Judge Spain void.Zand fails to provide citations to the record for most ofthe procedural events on which he bases these claims oferror pertaining to the rulings seeking disqualification ofJudges Hayashi and Schwartz. Nor does he say whether hesought writ review of the allegedly erroneous disqualificationrulings, which is the sole method of obtaining appellatereview of such rulings. (§ 170.3, subd. (d).)*5 Third, Zand claims that Sukumar lacks standing to bringthe claims in his complaint because he was not a party to acontract with Zand. He relies on the test for standing for aprivate plaintiff to assert a claim under the unfair competitionlaw (Bus. & Prof. Code, § 17200 et seq.) and the falseadvertising law (Bus. & Prof. Code, § 17500 et seq.) asenunciated in Kwikset Corp v. Superior Court (2011) 51Cal.4th 310, 120 Cal.Rptr.3d 741, 246 P.3d 877. Sukumar'slack of standing, in Zand's view, deprived the trial court ofjurisdiction to act, so its orders are void. Here, despite beingadvised repeatedly by Judge Hayashi of his mistaken viewof how standing rules work, Zand fails to appreciate thatan allegation of standing is legally adequate at the pleadingstage. Even more basically, he fails to understand that thestatutory test for standing under Kwikset has no application toSukumar's contract and tort causes of action, which make upthe bulk of the claims in his complaint. Judge Hayashi issuedmultiple monetary sanctions awards against Zand for hisfrivolous attempts to argue lack of standing despite repeatedadmonitions that the argument is meritless, and when thosesanctions went unpaid, Judge Spain imposed terminatingsanctions.8Continuing this pattern of making arguments that eventuallyresulted in terminating sanctions below, Zand still refuses toget the message. Sukumar's purported lack of standing hasbeen a persistent theme in all of Zand's papers on appeal, hereand in Zand I. Zand argued in his briefs in Zand I that Sukumarlacked standing to bring his complaint against Zand, and thattherefore the court lacked jurisdiction. He also filed a motionrelating to standing, entitled “Motion to Determine, in Viewof Judicially-Shown Perjurious Complaint, if RespondentHas Established Standing.” That motion asked this court torequire Sukumar to present evidence on appeal to show hehas standing. The Zand I opinion addressed and denied thismotion, stating in part: “Zand has shown no basis for thiscourt to take the unusual step of taking evidence and makingfindings about whether Sukumar has standing (a potentialdefense by Zand to Sukumar's complaint), a question that isunrelated to the merits of the present appeal of the trial court'sorder striking Zand's cross-complaint under the anti-SLAPPstatute.” (Zand I, supra, A163376.) The standing argumentZand now asserts is just a variation on the same idea. At oralargument on this appeal, Zand once again requested that weissue an order authorizing him to take discovery on the issueof standing (we denied the request), and after we took the caseunder submission he filed an unauthorized motion making thesame request (we declined to entertain it).Fourth, and finally, Zand claims that, when we partiallydenied his request for judicial notice (RJN) of certain extra-record evidence in Zand I, we failed to understand that, underEvidence Code section 459, we had no authority to deny theRJN because the statute uses the word “shall,” which, in hisreading, means that, when a litigant requests a court to takecognizance of some item of proposed evidence, the courtmust grant the request if the litigant believes the evidenceis relevant, and any failure to do so deprives the court ofjurisdiction. In support of a petition for rehearing in Zand I,Zand filed a second RJN making a version of this argument.We summarily denied the rehearing petition, as we often dowhen such petitions simply reframe issues that have alreadybeen decided. We rejected the second RJN along with thepetition for rehearing. So here, too, Zand continues to makelegally baseless arguments that we dealt with and rejected inZand I.*6 Although some of Zand's notice of errata, judicialdisqualification, standing, and judicial notice arguments wereraised in Zand I, and some are slightly refashioned versions ofpositions he took in his prior appeal, all of these miscellaneousadditional arguments face the same obstacles Zand faces inreasserting his contention that Judge Hayashi entered no validorder granting Sukumar's anti-SLAPP motion: They, too, areeither barred by the law of the case doctrine because theywere rejected explicitly or implicitly in Zand I, or, to theextent Zand wishes to raise judicial disqualification issuesconcerning Judges Hayashi, Schwartz, or Spain, those issuesare nonappealable here and were forfeited long ago. That isthe basic position Sukumar takes on the merits in respondingto this appeal, and as noted above, we agree with it, so wewill affirm.“ ‘ “California courts have long held that trial courts havebroad discretion in determining the amount of a reasonable
Zand v. Sukumar, --- Cal.Rptr.3d ---- (2026) © 2026 Thomson Reuters. No claim to original U.S. Government Works.5attorney's fee award. This determination is necessarily ad hocand must be resolved on the particular circumstances of eachcase.” ’ ” (The Kennedy Com. v. City of Huntington Beach(2023) 91 Cal.App.5th 436, 465, 308 Cal.Rptr.3d 461.) Asa panel of this court held some years ago, the “only properbasis of reversal of the amount of an attorney fees award isif the amount awarded is so large or small that it shocks theconscience and suggests that passion and prejudice influencedthe determination.” (Akins v. Enterprise Rent-A-Car Co.(2000) 79 Cal.App.4th 1127, 1134, 94 Cal.Rptr.2d 448.)We are satisfied that Judge Spain exercised her discretionappropriately on this record and that the amount she awardedis not excessive.As he did in Zand I, Sukumar filed a separate motionrequesting an award of attorney fees under section 425.16,subdivision (c)(1). Given the outcome of this appeal on themerits, the motion is granted. As we explained in Zand I, anaward of fees (including appellate fees) to a prevailing anti-SLAPP defendant is mandatory. (Trapp v. Naiman (2013) 218Cal.App.4th 113, 122, 159 Cal.Rptr.3d 462.) The amount ofappellate attorney fees shall be determined by the trial courton remand. (Area 51 Productions, Inc. v. City of Alameda(2018) 20 Cal.App.5th 581, 605, 229 Cal.Rptr.3d 165.)B.1.We now come to the central flaw in Zand's approach to thisappeal, a flaw that would cross a red line for any litigantappearing before us, represented or pro se. This is whattakes Zand's general approach to arguing his appeal from acollection of ill-informed attempts at legal reasoning, largelydevoid of support in the record, into sanctions territory.Underlying virtually everything Zand says in support of hisappeal is the theory that, by labelling any order entered againsthim as void, he has a self-granted license to continue torelitigate past, adverse decisions against him, ad nauseum.This idea of voidness is wildly incorrect. If Zand's conceptionof voidness were right, litigation would be never-ending. Hismisuse of the doctrine of voidness as an all-purpose excuseto disregard basic principles of finality renders his appealfrivolous.9In re Marriage of Flaherty (1982) 31 Cal.3d 637, 183Cal.Rptr. 508, 646 P.2d 179, enunciates the governingstandard for appellate frivolousness determinations. “Anappeal taken for an improper motive represents a time-consuming and disruptive use of the judicial process.Similarly, an appeal taken despite the fact that no reasonableattorney could have thought it meritorious ties up judicialresources and diverts attention from the already burdensomevolume of work at the appellate courts. Thus, an appeal shouldbe held to be frivolous only when it is prosecuted for animproper motive—to harass the respondent or delay the effectof an adverse judgment—or when it indisputably has no merit—when any reasonable attorney would agree that the appealis totally and completely without merit.” (Id. at p. 650, 183Cal.Rptr. 508, 646 P.2d 179.)*7 The Flaherty standard is met in this case.Fundamentally, Zand's voidness arguments are premised onthe rule that void orders may be attacked at any time, prior toor after entry of final judgment, whether or not the voidnessobjection was raised in the trial court. (People v. AmericanContractors Indemnity Co. (2004) 33 Cal.4th 653, 660, 16Cal.Rptr.3d 76, 93 P.3d 1020 (American Contractors); seeKabran v. Sharp Memorial Hospital (2017) 2 Cal.5th 330,339, 212 Cal.Rptr.3d 361, 386 P.3d 1159.) But voidness is anarrow exception to more general principles of finality. Andvoidness arguments commonly fail because the challengedorder is deemed to rest on an asserted error that falls shortof a defect of “fundamental jurisdiction,” as distinguishedfrom an order entered “in excess of jurisdiction.” (AmericanContractors, at p. 661, 16 Cal.Rptr.3d 76, 93 P.3d 1020.)10Every one of the asserted procedural defects Zand complainsabout as an excuse for collaterally attacking various ordersleading to the anti-SLAPP attorney's fees order in this caseis, at most, a matter of voidability that he either forfeitedby not raising in Zand I, or that was resolved—implicitly orexplicitly—in Zand I itself.Zand fails to appreciate that “[e]rrors which are merelyin excess of jurisdiction should be challenged directly, forexample by motion to vacate the judgment, or on appeal,and are generally not subject to collateral attack once thejudgment is final unless ‘unusual circumstances were presentwhich prevented an earlier and more appropriate attack.’” (American Contractors, supra, 33 Cal.4th at p. 661, 16Cal.Rptr.3d 76, 93 P.3d 1020.) In this case, there are no suchcircumstances. Not even close. Nothing here justifies Zandin mounting what is a collateral attack on a final judgment.Rather than make a serious attempt to grapple with the lawof finality, Zand resorts to characterizing acts by Sukumar
Zand v. Sukumar, --- Cal.Rptr.3d ---- (2026) © 2026 Thomson Reuters. No claim to original U.S. Government Works.6and his counsel as “corrupt,” “criminal,” and “perjurious,”and the judicial officers who have rejected the positions heis taking here as untrained and unable to understand “thefundamentals of jurisprudence,” as if incendiary rhetoric willadd strength to his arguments. But tossing around ad hominemattacks on anyone and everyone who disagrees with himhardly advances Zand's cause.*8 Misguided voidness arguments are not unusual comingfrom pro se litigants who persistently refuse to accept thefinality of adverse judgments against them. (See, e.g., Estateof Kempton (2023) 91 Cal.App.5th 189, 201, 308 Cal.Rptr.3d249.) Certainly, many litigants, whether represented or not,can easily miss the nuances of the doctrine of voidness(which is sometimes challenging to apply even for lawyersand judges); and certainly, many pro se litigants, due to acombination of lack of legal training and lack of perspective,may be unable to resist making arguments they genuinelybelieve permit endless relitigation of past losses, particularlyin matters that inspire strong feelings. But that is no excuse.Although the reasons Zand decided to pursue his voidnesstheory may be understandable, none of them justifies itsfrivolousness.Because no reasonable attorney would believe an appealresting on Zand's theory of voidness might have any chance ofsuccess, we conclude that this appeal is objectively frivolous.We further conclude that the way Zand has attempted touse the voidness doctrine, on this record, is subjectivelyfrivolous. The specific context must be kept in mind. Zand'svoidness theory is the centerpiece to his campaign of seriallyrelitigating the validity of the April 23, 2021 order weaffirmed in Zand I. That order dismisses Zand's cross-complaint for violation of the anti-SLAPP statute, which bydefinition means the starting point for evaluating his intentis a finding—which we affirmed—that his cross-complaintconstituted a misuse of the judicial process (i.e., it struck atSukumar's freedom to petition). And since the entry of thatorder, Zand has now unsuccessfully appealed without basistwice, each time obstructing Sukumar's ability to obtain reliefin the underlying case, resulting in total delay of more thanfive years.11Add to that Zand's tendency to use invective in an apparentattempt to inflict reputational damage on his adversaryand opposing counsel by spreading accusations of criminalconduct on the public record, a tactic he has used liberallyin all of his appellate briefs, and we find that this appeal hasbeen pursued for improper motives—to bring about delay anddrag this case out for as long as possible, to burden Sukumarwith unnecessary costs in retaliation for suing him, and toimpugn the integrity not just of Sukumar but of anyone whohe perceives has failed to recognize the righteousness of hiscause. (Cf. Grewal v. Jammu (2011) 191 Cal.App.4th 977,1000–1003, 119 Cal.Rptr.3d 835 [a defendant's right to pursuean interlocutory appeal after losing an anti-SLAPP motion,while obtaining a stay of all proceedings affecting the meritsof the case, is the aspect of the anti-SLAPP statute mostsubject to abuse].)2.*9 We do not impose appellate sanctions lightly. “We areaware sanctions should be ‘used most sparingly to deteronly the most egregious conduct’ [citation], and that anappeal lacks merit does not, alone, establish it is frivolous[citation]. This appeal, however, goes far beyond assertingan unmeritorious claim.” (In re Marriage of Gong & Kwong(2008) 163 Cal.App.4th 510, 518, 77 Cal.Rptr.3d 540.) Alllitigants—represented or not—are held to the same standardsof conduct and practice in this court. (Rappleyea v. Campbell(1994) 8 Cal.4th 975, 984–985, 35 Cal.Rptr.2d 669, 884 P.2d126; Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1246–1247,19 Cal.Rptr.3d 416.)This appeal falls well below these standards in multiple ways.In addition to giving us a set of poorly organized and difficult-to-comprehend briefs that are full of inaccurate legal citationsand unsupported factual assertions, and designating anunwieldy 15-volume, 3,890-page clerk's transcript containingalmost nothing of relevance to the attorney's fees orderunder review, Zand has repeatedly submitted unauthorizedpleadings, baseless motions, and oddly titled documents.Virtually every one of these unauthorized submissions, insome way, relies on his mistaken notion of voidness. As aresult of the core theory Zand has elected to pursue and themanner he has chosen to pursue it, he has not only foistedunnecessary expense on his adversary, but also forced usto consume an inordinate amount of court time, far out ofproportion to the time and attention we would typically giveto a comparable appeal of modest complexity.This is not a case in which it might be said that we areimposing sanctions “on a propria persona appellant solely onthe ground the appeal lacked merit” in circumstances wherethere was no evidence of improper motive. (Kabbe v. Miller(1990) 226 Cal.App.3d 93, 98, 275 Cal.Rptr. 893.) Unlike
Zand v. Sukumar, --- Cal.Rptr.3d ---- (2026) © 2026 Thomson Reuters. No claim to original U.S. Government Works.7the pro se appellant in Kabbe, Zand has shown himself tobe “a persistent litigant” (ibid.) who has been engaged ina campaign of harassment and delay designed to impedeSukumar's ability to obtain relief in this action and retaliateagainst him for bringing suit. We have already explainedwhy Zand's voidness theory, the principal rationale for thiscampaign, is frivolous. That alone would warrant sanctions,but it is not the only frivolous aspect of what he has done here.Because every position Zand has taken is pure “sophistry”and “[goes] beyond proper advocacy and common sense” (Inre Marriage of Gong & Kwong, supra, 163 Cal.App.4th at p.521, 77 Cal.Rptr.3d 540), we deem the entire appeal to be an“utterly futile gesture[ ] that [has] unnecessarily wasted thetime and resources of respondent[ ] and this court.” (Bank ofCalifornia v. Varakin (1990) 216 Cal.App.3d 1630, 1638, 265Cal.Rptr. 666.)We are dealing here with a litigant who has shown a disturbinglack of candor. As noted above, Zand claims that JudgeHayashi in fact denied Sukumar's anti-SLAPP motion, ratherthan granting it. This argument rests on an objectively falsereading of the record. Zand provides no record citations tosupport his treatment of the relevant docket activity betweenFebruary and April 2021, opting instead to give us a snapshotimage of an ROA fragment from some uncited source. Indoing so, however, he apparently fails to realize that the ZandI record includes the full ROA for the relevant timeframe.And upon inspection of a more complete listing of docketactivity, we see that Zand leaves out a highly relevant fact—a docket entry in the ROA for February 23, 2021 stating“Motion to Strike Granted[,]” which destroys the premise ofthe central contention driving this appeal.12 By itself, thisomission would likely subject an attorney to discipline formisrepresenting the record (Cal. Rules of Prof. Conduct, rule3.3(a)(1), (a)(3)), but Zand makes things worse, doublingdown with vague speculation about illicit conduct involvingcourt staff to explain his theory of an order that purportedlydoes not exist. No reasonable attorney would present pertinent“facts” to us in this deceptive fashion—contrary to what wecan plainly see—much less hope to escape consequences fordoing so.*10 Turning from mischaracterization of the record tomisuse of the law, no reasonable attorney would make claimsof erroneous denial of judicial disqualification by appeal (asZand has done here) instead of by writ petition (as he shouldhave done), especially when the alleged error is raised yearsafter the grounds for such claims arose.13 Nor would anyreasonable attorney make the lack of standing argumentsZand has made here, especially given our rejection of themin Zand I and the history of his attempts to pursue this lineof argument below. A pattern of prior sanctionable conductin the trial court is sometimes a prelude to a sanctionsaward on appeal, and it is here. (See Bucur v. Ahmad (2016)244 Cal.App.4th 175, 192, 198 Cal.Rptr.3d 127 [“Appellatecourts can, and often do, consider the prior conduct ofattorneys and their clients in considering whether sanctionsare appropriate.”]; see Kleveland v. Siegel & Wolensky,LLP (2013) 215 Cal.App.4th 534, 556–558, 155 Cal.Rptr.3d599.) Zand was repeatedly admonished and ordered to paymonetary sanctions by Judge Hayashi for making meritlessstanding arguments, and he ultimately suffered terminatingsanctions for his intransigence in doing so. That has somebearing on his motives for the pursuit of this appeal, sincehis ill-considered efforts to argue lack of standing in the trialcourt—not to mention our opinion in Zand I— should haveput him on notice to refrain from making this futile argumentyet again.Then there is the lack of any real seriousness to some ofthe arguments offered up by Zand. Not even a misguidedtrue believer in the rightness of his overall cause wouldthink that these arguments might have a chance to succeed.Take, for example, the suggestion that by filing a noticeof errata, Sukumar's counsel effectively nullified their workon the respondent's brief in Zand I and therefore cannotclaim compensation for any time spent on that appeal. “Ourreaction[,]” to quote our colleagues’ succinct assessment ofan exceedingly weak argument advanced in Grewal v. Jammu,supra, 191 Cal.App.4th at page 993, 119 Cal.Rptr.3d 835, issimply “Disbelief.” This argument is so far-fetched that weneed not comment substantively on its lack of merit, otherthan to say that any reasonable attorney would realize that, ifraised, it would harm rather than promote his client's interests.Another equally far-fetched example is the suggestion thatjudicial notice is some sort of procedure that entitles a litigantto demand a court must take cognizance of whatever evidencethe litigant wishes to offer, an argument that also beggarsbelief.While a sliver of arguable merit may be found in some ofthe most egregious of the published cases where appellatesanctions have been awarded under the Flaherty standard(see, e.g., Estate of Kempton, supra, 91 Cal.App.5th at p. 207[nine out of ten arguments advanced by appellant deemed tobe frivolous]), this appeal is worse than that. We conclude itlacks any semblance of arguable merit and has been pursuedfor an improper motive.
Zand v. Sukumar, --- Cal.Rptr.3d ---- (2026) © 2026 Thomson Reuters. No claim to original U.S. Government Works.83.*11 We are left only with the question of what sanctionsto award. We are empowered to and might simply dismissthe appeal (see Olsen v. Harbison (2005) 134 Cal.App.4th278, 289, 35 Cal.Rptr.3d 909), but we have opted to decidethe appeal on the merits to ensure there is no doubt aboutthe preclusionary scope of our affirmance should Zandsurface yet again in another appeal attempting to reassertthe same arguments, as he has a propensity to do. Instead,we will impose two forms of monetary sanctions. First,pursuant to section 907 and California Rules of Court,rule 8.276, Sukumar is entitled to recovery of reasonableattorney's fees incurred in responding to this appeal (Olsen,at p. 288, 35 Cal.Rptr.3d 909), but without duplicating theaward of attorney's fees payable to him as a prevailingdefendant under section 425.16, subdivision (c)(1). Second,for the unnecessary consumption of public resources Zandhas caused through the pursuit of this appeal and the relatedmotions, applications, and other miscellaneous pleadingsZand has submitted with the appeal, Zand is to pay monetarysanctions to the clerk of this court. “Courts frequently haveimposed ... sanctions, payable to the clerk of the court,to compensate the state for the cost to the taxpayers ofprocessing a frivolous appeal.” (Bucur v. Ahmad, supra, 244Cal.App.4th at p. 192, 198 Cal.Rptr.3d 127.) Sanctions ordersof this type in the published cases have “ranged from $6,000to $25,000.” (Ibid.)In this case, we will direct payment of $10,000 to the clerkof this court. We believe that amount is justified not onlyby the high degree of “objective frivolousness” shown bythis appeal (Kleveland v. Siegel & Wolensky, LLP, supra, 215Cal.App.4th at p. 559, 155 Cal.Rptr.3d 599) and the indiciaof bad faith, but also because the total amount of sanctionsawarded must be high enough so that it has meaningful,deterrent bite over and above the attorney's fees that areautomatically payable to Sukumar under section 425.16,subdivision (c)(1). (Cf. Kleveland, at p. 558, 155 Cal.Rptr.3d599 [“ ‘Factors relevant to determining the amount ofsanctions to be awarded a party responding to a frivolousappeal include “the amount of respondent's attorney fees onappeal; the amount of the judgment against appellant; thedegree of objective frivolousness and delay; and the needfor discouragement of like conduct in the future.” ’ ”].)Should Zand fail to pay the monetary sanctions we haveordered, he is forewarned that any future appeal arising outof this proceeding may face the more summary treatmentof dismissal under the appellate disentitlement doctrine.(Cf. Stoltenberg v. Ampton Investments, Inc. (2013) 215Cal.App.4th 1225, 1230–1234, 159 Cal.Rptr.3d 1 [appellatecourt has inherent power to dismiss an appeal by a party whorefuses to comply with a lower court order].)14III. DISPOSITION*12 The attorney's fees award entered by Judge Spainpursuant to the remittitur in Zand I is affirmed. Zand isordered to pay $10,000 in sanctions to the clerk of this courtfor the frivolous pursuit of this appeal. Pursuant to section425.16, subdivision (c)(1), Sukumar's request for attorney'sfees incurred in the present appeal is granted, with the amountto be determined by the trial court on remand. Zand is furtherordered to pay Sukumar whatever amount of reasonableattorney's fees Sukumar incurred in responding to this appealas a sanction, but without duplication of amounts awarded asattorney's fees under section 425.16, subdivision (c)(1). Thecause is remanded for further proceedings to determine theamount payable by Zand to Sukumar. The amount payableto this court is due within ten days of the issuance of theremittitur. Sukumar shall recover his costs on appeal.WE CONCUR:BROWN, P. J.GOLDMAN, J.All Citations--- Cal.Rptr.3d ----, 2026 WL 1004880Footnotes
Zand v. Sukumar, --- Cal.Rptr.3d ---- (2026) © 2026 Thomson Reuters. No claim to original U.S. Government Works.91We take judicial notice on our own motion of the record filed in Zand I.2We note that the order includes the following language addressing administrative matters, just before thecourt's signature: “The Court will prepare the order and mail copies to the parties. Cross-Defendant Sukumarshall promptly file and serve the notice of entry of order.”3The format and substance of the May 6, 2021 order track with the April 26, 2021 ex parte application bySukumar. The order specifically addresses two requests, numbered “request #1” and “request #2,” whichrespectively match the subject matter of two separate requests made in Sukumar's April 26, 2021 ex parteapplication.4The ROA, formally titled “Domain Case Summary,” appears in the Zand I record as an attachment to theClerk's certification in that appeal.5When asked at oral argument how Sukumar's counsel had come into possession of a “draft” order, Zandsuggested there may have been bribery of court staff or some other form of illicit inducement to someonewith access to judicial work product. Sukumar's April 26, 2021 ex parte application provides a more benignexplanation. A declaration from Sukumar's counsel in support of this ex parte request explains as follows:“On or about February 16, 2021, the Court issued a tentative ruling granting [Sukumar's] special motion tostrike the cross complaint .... The tentative ruling stated that the Court would serve the order on the parties.The hearing was held on February 17, 2021, and the matter was taken under submission. On February 23,2021, the Court posted on the [ROA] that the motion was granted. Notwithstanding the foregoing, the ordergranting the motion is not available for download on the ROA on the Court's website, and the Court Clerk hasnot served the parties with the order.” In short, for technical reasons Sukumar's counsel could not retrieve acopy of the order from the court's website, so he asked the court to serve it.6Why Judge Hayashi would rule on the same ex parte application twice Sukumar does not explain. Actually,however, we cannot tell what ex parte application the April 28, 2021 order addresses. While there are enoughspecifics to the later May 6, 2021 order to match it to Sukumar's ex parte application on April 26, 2021, thereis nothing in the record to indicate what the court was addressing on April 28, 2021. The order is terse andprovides no specifics about the nature of the request being ruled upon or the date the request was made. Itstates, simply, that “IT IS ORDERED that the Plaintiff's Application Re: Other Ex Parte is denied. Previousorders stand.”7In his reply brief, Zand adds yet another variation of his argument that Judge Hayashi failed to enter a validorder granting Sukumar's anti-SLAPP motion. He claims that, although Sukumar filed amended papers insupport of his anti-SLAPP motion, Judge Hayashi erroneously ruled on the original, unamended motion.Because the original form of the motion was effectively superseded, Zand argues, the motion was effectivelywithdrawn, which renders Judge Hayashi's adverse ruling against him on it void. In accord with our usualpractice, we decline to consider this argument as it was raised for the first time in the reply brief. Even ifthe argument had not been forfeited, we would reject it as wholly baseless. Zand has cited to nothing inthe record to show that Sukumar's amended anti-SLAPP motion was materially different from the motion asoriginally filed.8According to a declaration filed by Sukumar's counsel in support of his motion for terminating sanctions,“Defendant [Zand] has filed dozens of motions all premised on his argument that Plaintiff Sukumar lacksstanding. This includes motions to strike the complaint, motions for reconsideration of the order denying themotions to strike, and motions for reconsideration of the denial of the motions for reconsideration.... [¶] TheCourt has denied each of these motions, repeatedly advising Defendant that the Court cannot decide the
Zand v. Sukumar, --- Cal.Rptr.3d ---- (2026) © 2026 Thomson Reuters. No claim to original U.S. Government Works.10issue on the face of the pleadings. Defendant disregarded the admonishment[s], and continued to file thefrivolous motions ....”9Zand has been provided notice and an opportunity to respond to our preliminary determination that sanctionsfor the pursuit of a frivolous appeal may be ordered. On February 26, 2026, we issued an order to show cause(OSC) “why this court should not impose sanctions for making frivolous appellate arguments and motions orfor other grounds for sanctions that are identified in [California Rules of Court,] rule 8.276(a).” Zand has fileda written response which adds nothing significant to the arguments already presented in his briefs, and hehad a further opportunity to respond at oral argument.10The classic case explaining and applying this distinction is Abelleira v. District Court of Appeal (1941) 17Cal.2d 280, 288, 290, 109 P.2d 942. For more recent examples of its application, compare, e.g., Dill v.Berquist Construction Co. (1994) 24 Cal.App.4th 1426, 1441, 29 Cal.Rptr.2d 746 (lack of valid service ofsummons resulting in lack of personal jurisdiction voids judgment); and Airs Aromatics, LLC v. CBL DataRecovery Technologies, Inc. (2018) 23 Cal.App.5th 1013, 1018–1019, 1022–1023, 233 Cal.Rptr.3d 656(default judgment awarding relief beyond that requested in complaint violated due process, thereby voidingjudgment) with Lee v. An (2008) 168 Cal.App.4th 558, 561, 566–567, 85 Cal.Rptr.3d 620 (imposition ofterminating sanctions without proper notice rendered the judgment voidable, not void); American Contractors,supra, 33 Cal.4th at pp. 660, 663, 16 Cal.Rptr.3d 76, 93 P.3d 1020 (premature entry of summary judgmentrenders judgment voidable, not void); Grados v. Shiau (2021) 63 Cal.App.5th 1042, 1051, 278 Cal.Rptr.3d358 (default judgment awarding interest in excess of the legal rate allowed by the California Constitution wasact in excess of jurisdiction, rather than a lack of fundamental jurisdiction); and City of Santa Paula v. Narula,supra, 114 Cal.App.4th at pp. 490–492, 8 Cal.Rptr.3d 75 (judgments underlying an award of attorney's feesin abatement proceeding against landowner by municipality were not void, where landowner claimed themunicipality initiated the action by filing a “petition” rather than a “complaint”).11In September 2020, Sukumar served discovery in an effort to proceed on the claims alleged in his complaint,but Zand refused to respond once the anti-SLAPP motion was filed, pointing to the section 425.16, subdivision(g), automatic discovery stay and arguing—frivolously, as we have pointed out—that the stay remainsin place because he has never received valid “notice of entry of the order ruling on the [anti-SLAPP]motion” under section 425.16, subdivision (g). He has also taken the position he need not respond todiscovery (or pay sanctions for failing to provide discovery) because Sukumar lacks standing to sue him.In effect, he has leveraged the same frivolous arguments made in appealing the dismissal of his cross-complaint into an excuse for refusing to comply with his discovery obligations. As noted above, this discoverynoncompliance and failure to pay money sanctions flowing from it eventually resulted in the imposition ofterminating sanctions. In the meantime, Zand's two appeals have blocked Sukumar from litigating the caseto conclusion. Judge Hayashi ordered a stay during the pendency of the Zand I appeal, and shortly afterimposing terminating sanctions, Judge Spain stayed the proceedings a second time pending completion ofthis appeal, thereby preventing Sukumar from obtaining a judgment following the imposition of terminatingsanctions.12When asked about this ROA entry at oral argument, Zand did not deny knowledge of it or show any contritionfor failing to cite it. Instead, he tried to explain it as yet another indication of improper conduct by court staff,who, according to Zand, created the February 23, 2021 ROA entry “retroactive[ly].”13We do not refer here to a more recent judicial disqualification issue Zand raised in a recusal motion directedto the members of this appellate panel. Relying on disqualification procedures applicable to “judges of thesuperior courts, and court commissioners and referees” (§ 170.5, subd. (a); see §§ 170.1–170.3)—a definitionthat, in plain terms, does not describe us as members of the Court of Appeal—Zand claimed that our recusal ismandatory under Canon 3E of the California Code of Judicial Ethics. The specific grounds for this suggestionof partiality are unclear, but appear to boil down to our having issued the opinion in Zand I, which, according
Zand v. Sukumar, --- Cal.Rptr.3d ---- (2026) © 2026 Thomson Reuters. No claim to original U.S. Government Works.11to Zand, contains errors we have not corrected, despite his petition for rehearing in Zand I and variousunauthorized submissions in this appeal (at least five by our count) continuing to make arguments that wehave now rejected multiple times. We denied this motion by order issued February 26, 2026, each member ofthe panel having considered it and declined to recuse. (See Kaufman v. Court of Appeal (1982) 31 Cal.3d 933,937–940, 184 Cal.Rptr. 302, 647 P.2d 1081.) “Because we can conceive of only one purpose, i.e., ‘judge-shopping,’ for [Zand's] attempt to disqualify this court and/or to cause this court to recuse itself, we individuallyand as a unit denied [Zand's] motion to disqualify this panel from proceeding in this matter. We are confidentthat review by a higher court will reveal no bias or prejudice against [Zand] but will reveal a decision basedsolely upon the law and the facts relevant to a determination of the legal issues.” (First Western DevelopmentCorp. v. Superior Court (1989) 212 Cal.App.3d 860, 867, 261 Cal.Rptr. 116.)14One final point—a comment on relief we are not ordering, at least for now—is also worthy of mention by way offorewarning. In his motion for sanctions, Sukumar asks this court to declare Zand a vexatious litigant and entera prefiling order against him under section 391.7. A vexatious litigant, as defined by statute, includes a personwho, acting in propria persona, “repeatedly relitigates” the validity of a determination made in litigation thatwas resolved against the person (§ 391, subd. (b)(2)) or repeatedly files unmeritorious motions, pleadings,or other papers (id., subd. (b)(3)). (See First Western Development Corp. v. Superior Court, supra, 212Cal.App.3d at pp. 867–868, 261 Cal.Rptr. 116 [“The purpose of the statutory scheme is to deal with theproblem created by the persistent and obsessive litigant who has constantly pending a number of groundlessactions, often against the judges and other court officers who decide, or were concerned in the decision ofprevious actions adversely to him.”].) Sukumar's section 391.7 request is arguably warranted, but we declineat this time to declare Zand a vexatious litigant or enter a prefiling order. We do advise Zand, however, that,given the baselessness of the arguments and motions he has made in the prior appeal (A163376) and againin the present appeal, we would seriously consider the vexatious litigant question if he were to appear againin this court presenting similar arguments. He should take note that, while he has avoided such a finding fornow, he is on the cusp of our deciding to enter one.End of Document© 2026 Thomson Reuters. No claim to original U.S. Government Works.
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