California Legal Brief

The Rule of Zand v. Sukumar is that an appellant cannot use the doctrine of voidness to collaterally attack a final appellate judgment by claiming trial court orders were void, when the challenged orders rest on errors that are merely in excess of jurisdiction rather than fundamental jurisdictional defects, under circumstances where the appellant has already appealed the underlying orders and lost.

Appeal from order awarding attorney's fees in Superior Court, Alameda County.

Defendant Appellant was Afshin Zand — the cross-complainant who filed a cross-complaint that was struck under the anti-SLAPP statute.

Plaintiff Respondent was Ponani Sukumar — the original plaintiff who obtained dismissal of Zand's cross-complaint via anti-SLAPP motion.

The suit sounded in breach of contract, unjust enrichment, intentional and negligent misrepresentation, and unfair competition. Zand filed a cross-complaint against Sukumar.

The key substantive facts leading to the suit were that on June 15, 2020, Sukumar filed a complaint against Zand asserting several causes of action including breach of contract, unjust enrichment, intentional and negligent misrepresentation, and unfair competition. Zand filed a cross-complaint against Sukumar.

The procedural result leading to the Appeal: The trial court (Judge Spain) awarded $41,580 in attorney's fees to Sukumar on remand following the court's prior appellate opinion in Zand I, which affirmed dismissal of Zand's cross-complaint under the anti-SLAPP statute and directed the trial court to determine appellate attorney fees on remand.

The key question(s) on Appeal: 1. Whether Judge Hayashi actually entered a valid order granting Sukumar's anti-SLAPP motion 2. Whether various alleged procedural defects rendered the underlying orders void 3. Whether the attorney's fees award should be reversed based on claims that no valid underlying order existed

The Appellate Court held that all of Zand's voidness arguments were frivolous attempts to collaterally attack a final judgment, that the trial court properly entered the attorney's fees order on remand, and that Zand's appeal was objectively and subjectively frivolous warranting sanctions of $10,000 payable to the court clerk plus additional attorney's fees to Sukumar.

The case is inapplicable when the challenged order involves a fundamental jurisdictional defect rather than errors merely in excess of jurisdiction, when the appellant has not previously had an opportunity to challenge the underlying orders on direct appeal, or when unusual circumstances prevented an earlier and more appropriate attack on the judgment.

The case leaves open what specific factual circumstances might constitute "unusual circumstances" sufficient to justify collateral attack on a final judgment, and the precise boundaries between fundamental jurisdictional defects versus errors in excess of jurisdiction in the anti-SLAPP context.