1

Filed 2/29/24 Zand v. Sukumar CA1/4

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or 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

FIRST APPELLATE DISTRICT

DIVISION FOUR

AFSHIN ZAND,

Cross-complainant and 

Appellant,

v.

PONANI SUKUMAR,

Cross-defendant and 

Respondent.

A163376

(Alameda County Super. Ct.

No. RG20064932)

In this action arising from a contract dispute, Afshin Zand, proceeding 

in propria persona, appeals after the trial court (Hon. Dennis Hayashi) struck 

his cross-complaint against Ponani Sukumar under the anti-SLAPP 

(strategic lawsuit against public participation) statute (Code Civ. Proc.,1

§ 425.16). Zand contends in part that reversal is warranted because 

Sukumar’s underlying complaint against Zand contained falsehoods and 

perjury. We reject Zand’s arguments and affirm. 

1 Undesignated statutory references are to the Code of Civil Procedure.
2

I. BACKGROUND

A. Sukumar’s Complaint

On June 15, 2020, Sukumar initiated the present action by filing a 

complaint against Zand, asserting several causes of action, including breach 

of contract, unjust enrichment, intentional and negligent misrepresentation, 

and unfair competition.2 In the complaint, Sukumar alleged that, in early 

2019, he purchased and installed solar panel systems to generate electricity 

at properties in which he has an ownership interest. Sukumar “became 

concerned about electromagnetic emissions (including radiation) and 

interference (collectively, ‘EMI’) generated by such systems, and its 

potentially adverse impacts on human health and well-being.” 

Sukumar believed many other people share those concerns, and he 

decided to try to develop devices to mitigate EMIs. “The goal of this work 

was to develop commercially marketable EMI mitigation and remediation 

devices which . . . could be used by [Sukumar], and could be sold to other 

solar system owners and users. [Sukumar] was aware of other devices on the 

market which are intended for this purpose, but desired to invent, develop, 

and build a better, and more economical device.” 

The complaint states Sukumar retained Douglas Grimes to assist in 

performing EMI research and development. Sukumar directed Grimes to 

find a consultant with appropriate experience and qualifications, so Sukumar 

could hire the consultant to assist with the EMI research. Grimes contacted 

Zand based on a craigslist posting where Zand offered tutoring services in 

various fields. Sukumar alleges that, following discussions between Grimes 

2 Sukumar later filed an amended complaint in January 2021, but the

original complaint was the focus of Zand’s cross-complaint and the antiSLAPP proceedings in the trial court.
3

and Zand (during which Grimes allegedly told Zand that Sukumar was 

Grimes’s client), Sukumar “verbally hired” Zand to assist Sukumar in 

developing and inventing the EMI devices. 

Sukumar alleges that, between approximately September 28, 2019, and 

November 17, 2019, Zand requested payment, and Sukumar paid him 

$10,237.50 for engineering consulting services that Zand claimed he had 

performed. Sukumar asserts, however, that Zand did not provide timesheets 

describing his work and did not submit any work product. On or about 

December 2, 2019, Sukumar asked Zand to stop work on the project until a 

written agreement formalizing the arrangement between them could be 

prepared. 

Although Sukumar provided draft agreements to Zand, no final written 

agreement was reached. Among other issues, the parties disputed who would 

own the work product developed from the research. In addition, Zand 

demanded further payments from Sukumar totaling $62,600, including 

$9,975 for work performed between November 18, 2019, and December 1, 

2019; $37,625 for work performed between December 2, 2019, and 

January 24, 2020; and $15,000 to assign Zand’s ownership rights in the 

project work to Sukumar. 

Based on these alleged facts, Sukumar claimed Zand breached the oral 

contract between them by failing to perform or document any compensable 

work and by claiming ownership of the work product. Sukumar also alleged 

Zand made false representations about his qualifications that induced 

Sukumar to hire him. Sukumar sought compensatory and punitive damages 

and injunctive and declaratory relief. 

B. Zand’s Cross-Complaint 

Zand filed a cross-complaint on August 3, 2020, and a first amended 

cross-complaint (FACC) on August 14, 2020. The FACC alleges Sukumar 
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and his attorneys filed a false, malicious complaint against Zand (i.e., the 

complaint in the present case). The FACC also alleges Sukumar and his 

attorneys “obstruct[ed] justice” by “derail[ing]” Zand’s earlier-filed small 

claims court action against Holistic Vegetarian House (HVH), a company 

owned by Sukumar. One of Zand’s principal assertions in the FACC is that 

he contracted with HVH (and initially did not know about Sukumar or his 

involvement), so the statements in Sukumar’s complaint describing the 

contract as having been between himself and Zand were false. 

Based on this alleged conduct by Sukumar and his attorneys, the FACC 

asserts ten “causes of action”—for malicious prosecution, false claim,

obstruction of justice, fraud, perjury, libel and slander, intentional 

misrepresentation, “affirmative relief (post-filing period),” declaratory relief, 

and punitive damages. 

C. The Anti-SLAPP Motion

On October 19, 2020, Sukumar filed a motion to strike Zand’s FACC 

under the anti-SLAPP statute. After receiving briefing and hearing 

argument, the trial court granted the motion in an order filed on April 23, 

2021. As to the first prong of the anti-SLAPP test (which we discuss below), 

the court ruled Sukumar had met his initial burden to show that the basis of 

the claims in Zand’s cross-complaint was Sukumar’s alleged misconduct in 

filing and prosecuting the present action. 

On the second anti-SLAPP prong, the court agreed with Sukumar that 

Zand could not establish a probability he would prevail on his claims, because 

most of them were barred by the litigation privilege in Civil Code section 47, 

subdivision (b). As to Zand’s claim for malicious prosecution (which the court 

noted “is usually excepted from the coverage of the litigation privilege”), the 

court found Zand could not establish a likelihood he would prevail on that 

claim either, because “he [did] not plead facts showing that he obtained a 
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favorable result in the small claims case or this case.” Pursuant to 

section 425.16, subdivision (c)(1), the court awarded $5,500 in attorney fees 

and costs to Sukumar (reduced from the $9,949.50 Sukumar had requested, 

which the court found “excessive under the circumstances”). 

Zand appealed the court’s order. 

II. DISCUSSION

A. Legal Standards

The anti-SLAPP statute provides for the filing of a “special motion to 

strike” a cause of action that allegedly arises from protected communicative 

activities, if the cause of action lacks minimal merit. (§ 425.16, subd. (b)(1); 

Young v. Midland Funding LLC (2023) 91 Cal.App.5th 63, 78.) Specifically, 

section 425.16, subdivision (b)(1), the key provision of the anti-SLAPP 

statute, 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.” 

Section 425.16, subdivision (b)(1) does not “insulate defendants from 

any liability for claims arising from the protected rights of petition or speech.” 

(Baral v. Schnitt (2016) 1 Cal.5th 376, 384.) Instead, the statute “only 

provides a procedure for weeding out, at an early stage, meritless claims 

arising from protected activity.” (Ibid.) 

“ ‘Courts analyze anti-SLAPP motions using a familiar two-step 

analysis.’ ” (Young v. Midland Funding LLC, supra, 91 Cal.App.5th at p. 78.) 

“ ‘ “First, the court decides whether the defendant has made a threshold 

showing that the challenged cause of action is one ‘arising from’ protected 

activity. [Citation.] If the court finds such a showing has been made, it then 
6

must consider whether the plaintiff has demonstrated a probability of 

prevailing on the claim.” ’ ” (Barry v. State Bar of California (2017) 2 Cal.5th 

318, 321.) “ ‘Only a cause of action that satisfies both prongs of the antiSLAPP statute—i.e., that arises from protected speech or petitioning and

lacks even minimal merit—is a SLAPP, subject to being stricken under the 

statute.’ ” (Oasis West Realty, LLC v. Goldman (2011) 51 Cal.4th 811, 820.) 

We review de novo a trial court’s ruling on an anti-SLAPP motion. 

(Flatley v. Mauro (2006) 39 Cal.4th 299, 325 (Flatley).) 

B. Protected Activity

The trial court correctly concluded Sukumar met his initial burden to 

show the causes of action in Zand’s cross-complaint are based on protected 

petitioning activity. As noted, the cross-complaint seeks relief based on 

Sukumar’s filing and prosecution of his complaint in this action. Zand 

alleges in the cross-complaint that (1) the party he contracted with was HVH,

and therefore (2) Sukumar’s complaint, which alleges Sukumar was the 

contracting party, is “false,” “malicious,” and constitutes “perjury” and 

“fraud.” Zand claims injury from the “false claim,” including that it diverted 

him from productive work and exercise. 

A statement or writing made during judicial proceedings, including a 

complaint for relief, is conduct covered by the anti-SLAPP statute. 

Section 425.16, subdivision (e) defines the scope of activity protected by the 

statute to include “any written or oral statement or writing made before 

a . . . judicial proceeding” (§ 425.16, subd. (e)(1)), as well as “any written or 

oral statement or writing made in connection with an issue under 

consideration or review by a . . . judicial body” (id., subd. (e)(2)). The claims 

asserted by Sukumar in his complaint fall within the statute, as a claim for 

relief filed in court “indisputably is a ‘statement or writing made before 
7

a . . . judicial proceeding’ (§ 425.16, subd. (e)(1)).” (Navellier v. Sletten (2002) 

29 Cal.4th 82, 90.) 

Sukumar suggests Zand’s cross-complaint is also based in part on other 

litigation conduct by Sukumar, such as the filing of a motion to consolidate 

the prior small claims action with the present case. Such conduct is also 

protected by the statute, either as a “statement or writing made before 

a . . . judicial proceeding” (§ 425.16, subd. (e)(1)) or as a “statement or writing 

made in connection with an issue under consideration or review by 

a . . . judicial body” (id., subd. (e)(2)).

Zand contends the anti-SLAPP statute does not apply because 

Sukumar engaged in illegal conduct, specifically the presentation of false and 

perjurious claims to the court. To support his assertion that Sukumar 

presented false claims in the present case (superior court case 

no. RG20064932), Zand relies on an order (entitled “order re: judgment”) that 

was entered on September 16, 2020 in the small claims action that Zand filed 

against HVH (superior court case no. RS20062830).3 

In the September 16, 2020 order in the small claims case, the court

(Hon. Karin Schwartz) ruled Zand was entitled to recover payment from 

HVH for work Zand performed on or before December 2, 2019. The court also 

rejected HVH’s argument that Sukumar was the contracting party. The 

3 Zand requests that we take judicial notice of the small claims 

judgment and an earlier ruling in that case. In response, Sukumar asks that 

we take judicial notice of two other documents filed in the small claims 

matter: (1) HVH’s notice appealing the small claims judgment to the 

superior court, and (2) a June 16, 2021 minute order reflecting that, on 

appeal, the superior court found Sukumar was an indispensable party to that 

case and dismissed the matter without prejudice on that ground. We grant 

these requests for the purpose of providing background for the arguments 

raised by the parties in the present appeal. We address Zand’s other 

requests for judicial notice in part II.D, post. 
8

court stated in part: “[HVH] contends that the proper contracting party was 

Mr. Sukumar, but uncontroverted evidence establishes that [Zand] was not 

aware of Mr. Sukumar’s name or existence until 11/3/2019, more than a 

month after the contract was formed.” As noted, HVH appealed the small 

claims judgment, and in June 2021, the superior court in the small claims 

appeal (Hon. Victoria Kolakowski) dismissed that case without prejudice on 

the ground Sukumar was an indispensable party.

Relying on the September 2020 order in the small claims action, Zand 

asserts that certain statements by Sukumar in the present action (e.g., 

Sukumar’s allegations that he retained and paid Zand and was injured by 

Zand’s breach) are inconsistent with the small claims court’s findings and 

therefore are false and perjurious. We reject this argument. 

The Supreme Court has emphasized that “conduct must be illegal as a 

matter of law to defeat a defendant’s showing of protected activity. The 

defendant must concede the point, or the evidence conclusively demonstrate 

it, for a claim of illegality to defeat an anti-SLAPP motion at the first step.” 

(City of Montebello v. Vasquez (2016) 1 Cal.5th 409, 424; Flatley, supra, 

39 Cal.4th at p. 330 [attorney’s letter and phone calls constituted criminal 

extortion as a matter of law].) Sukumar does not concede that he engaged in 

illegal activity, and the evidence does not establish that he did. Instead, the 

only conduct at issue here—Sukumar’s filing and prosecution of the present 

action—was not illegal, and it was not rendered illegal by anything that 

occurred in the small claims case. 

Even putting aside the fact that the small claims action was later 

dismissed, Zand has cited no authority for the proposition that it is illegal for 

a litigant to make claims or factual allegations that are arguably inconsistent 

with findings made by a court in a related action. In some circumstances, 
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there may be a defense based on principles of claim or issue preclusion, but 

that does not mean it is “perjury” (which, among other things, requires that a 

person “willfully . . . state[] as true any material matter which he or she 

knows to be false” (Pen. Code, § 118, subd. (a)))

4 or otherwise “illegal as a 

matter of law” (as Zand contends) for a litigant to present the claim. 

C. Probability of Success

As to the second prong of the anti-SLAPP analysis, the trial court 

correctly concluded Zand did not show a probability of prevailing on the 

claims in his FACC. First, as the court found, most of Zand’s claims (all but 

his claim for malicious prosecution) are barred by the litigation privilege. 

The litigation privilege in Civil Code section 47 applies to “any 

communication (1) made in judicial or quasi-judicial proceedings; (2) by 

litigants or other participants authorized by law; (3) to achieve the objects of 

the litigation; and (4) that have some connection or logical relation to the 

action.” (Silberg v. Anderson (1990) 50 Cal.3d 205, 212.) The litigation 

privilege is “ ‘an “absolute” privilege, and it bars all tort causes of action 

except a claim of malicious prosecution.’ ” (Flatley, supra, 39 Cal.4th at 

p. 322.) The privilege is “relevant to the second step in the anti-SLAPP 

4 Penal Code section 118, subdivision (a) states in part: “Every person 

who, having taken an oath that he or she will testify, declare, depose, or 

certify truly before any competent tribunal, officer, or person, in any of the 

cases in which the oath may by law of the State of California be 

administered, willfully and contrary to the oath, states as true any material 

matter which he or she knows to be false, and every person who testifies, 

declares, deposes, or certifies under penalty of perjury in any of the cases in 

which the testimony, declarations, depositions, or certification is permitted 

by law of the State of California under penalty of perjury and willfully states 

as true any material matter which he or she knows to be false, is guilty of 

perjury.” 
10

analysis in that it may present a substantive defense a plaintiff must 

overcome to demonstrate a probability of prevailing.” (Id. at p. 323.) 

Here, Zand cannot prevail on his claims. The statements by Sukumar

and his attorneys that Zand contends were improper—principally the 

allegations in Sukumar’s complaint itself—are communications made in a 

judicial proceeding that are protected by the litigation privilege. (Action 

Apartment Assn., Inc. v. City of Santa Monica (2007) 41 Cal.4th 1232, 1249 

(Action Apartment) [“We contemplate no communication that is more clearly 

protected by the litigation privilege than the filing of a legal action.”].) Zand’s 

claims based on this conduct are barred. 

Zand contends the litigation privilege does not bar his claims because

the privilege does not apply to the crime of perjury. But the case on which 

Zand relies—Action Apartment, supra, 41 Cal.4th 1232—does not support his 

argument. In Action Apartment, the Supreme Court noted it had previously 

established that the litigation privilege does not bar prosecutions for perjury, 

subornation of perjury, and certain other offenses established by state 

statute. (Id. at p. 1246.) The court stated: “The crimes of perjury and 

subornation of perjury would be almost without meaning if statements made 

during the course of litigation were protected from prosecution for perjury by 

the litigation privilege.” (Ibid., fns. omitted.) 

Here, of course, Zand is a civil litigant, and his cross-complaint against 

Sukumar is not a prosecution by government authorities seeking to enforce 

state criminal or administrative statutes that are more specific than, and 

therefore prevail over, the litigation privilege. (See Action Apartment, supra, 

41 Cal.4th at pp. 1246–1247 [describing the basis for prior holdings that 

prosecutions for perjury and certain other crimes are not barred by the 

litigation privilege].) And, as discussed above, Sukumar’s presentation of 
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claims and factual allegations that Zand believes are inconsistent with the 

findings made in the small claims case does not establish Sukumar’s 

statements are false or amount to perjury. Zand has not shown his claims 

fall within any exception to the litigation privilege. 

Finally, as to Zand’s claim for malicious prosecution, the trial court 

noted the litigation privilege does not bar such a claim where the necessary 

elements are present. The Supreme Court has explained that “ ‘[t]he policy of 

encouraging free access to the courts that underlies the absolute [litigation] 

privilege . . . is outweighed by the policy of affording redress for individual 

wrongs when the requirements of favorable termination, lack of probable 

cause, and malice are satisfied.’ ” (Action Apartment, supra, 41 Cal.4th at 

p. 1242.) 

The trial court correctly held, however, that, at least as to the element 

of favorable termination, Zand has not shown a probability of prevailing. The 

court noted Zand “cannot establish a likelihood that he will prevail on [the] 

claim [for malicious prosecution] because he does not plead facts showing 

that he obtained a favorable result in the small claims case or this case.” 

Zand’s FACC alleges Sukumar’s complaint against him in the present 

superior court action constitutes malicious prosecution, but Zand does not 

allege in the FACC and does not contend on appeal that the present action 

has terminated favorably to him. 

Zand asserts he did obtain a favorable result in the small claims action, 

i.e., the September 16, 2020 order finding in his favor on his claim against 

HVH. But as noted, the small claims action was later dismissed by the 

superior court. In any event, the September 2020 order does not support 

Zand’s claim that Sukumar engaged in malicious prosecution. The small 

claims case was prosecuted by Zand against HVH, and Sukumar was not a 
12

party. Even if Sukumar, rather than HVH, had been the defendant in the

small claims action, “courts have long ‘refused to recognize a tort of malicious 

defense.’ ” (Coleman v. Gulf Ins. Group (1986) 41 Cal.3d 782, 794, fn. 9.) 

Zand has not shown a probability of prevailing on his malicious prosecution 

claim. 

We have considered the remaining arguments in Zand’s appellate briefs 

and find no basis for reversal. 

D. Zand’s Motions

Concurrently with the filing of his opening appellate brief on 

September 25, 2023, Zand filed a “Motion for Judicial Notice” and a twopronged motion: (1) “Motion to Determine, in View of Judicially-Shown 

Perjurious Complaint, if Respondent Has Established Standing,” and 

(2) “Motion to Vacate Order Under Appeal Due to Said Perjuries in Special 

Motion to Strike.” We entered an order stating we would defer ruling on both 

sets of motions until the merits of the appeal were addressed. We authorized 

Sukumar to file any response or opposition concurrently with his 

respondent’s brief, which he did on November 20, 2023.

5

We now deny in part and grant in part Zand’s motion for judicial notice,

and we deny his other motions. As to judicial notice, Zand asks that we take 

notice of (1) an unpublished 2013 opinion from the Fourth District Court of 

Appeal that is unrelated to the present case, (2) specified documents from the 

small claims court case that Zand filed against HVH, and (3) the record from 

5 In our September 26, 2023 order, we also stated that no further 

briefing by Zand on the motions was permitted without permission of the 

court. Zand nevertheless filed on January 22, 2024 a “Reminder re Motion 

from September Remaining to be Adjudicated,” in which he urged this court 

to resolve one of his motions and asserted incorrectly that Sukumar’s 

response to the motion was filed late. Zand’s “Reminder” was filed in 

violation of this court’s September 26, 2023 order and is therefore stricken. 
13

a prior appeal in this court (No. A164804) that arises from the same trial 

court proceedings as the present appeal. 

Sukumar opposes the first request, and we agree there is no basis to 

take notice of the unpublished appellate opinion submitted by Zand, which is 

irrelevant to the issues raised in this appeal and does not fall within any 

exception to the rule governing citation of unpublished opinions. (Cal. Rules 

of Court, rule 8.1115.) As to the small claims court documents, we have 

granted (in fn. 3, ante) Zand’s request for notice of two documents and 

Sukumar’s responsive request for notice of two others. Finally, as to the 

record in appeal No. A164804, Sukumar does not respond to this portion of 

Zand’s judicial notice request, but we have not found it necessary to look 

beyond the record in the present appeal (which Zand states “contain[s] the 

exact same records”). We therefore deny this request to the extent it may 

encompass documents outside the record of this appeal.

Turning to Zand’s other motions, we deny his “Motion to Determine, in 

View of Judicially-Shown Perjurious Complaint, if Respondent Has 

Established Standing.” As discussed above, the small claims court ruling on 

which Zand relies does not establish Sukumar has committed perjury. More 

broadly, Zand has shown no basis for this court to take the unusual step of 

taking evidence and making findings about whether Sukumar has standing

(a potential defense by Zand to Sukumar’s complaint), a question that is 

unrelated to the merits of the present appeal of the trial court’s order striking 

Zand’s cross-complaint under the anti-SLAPP statute. (In re Zeth S. (2003) 

31 Cal.4th 396, 405 [authority under § 909 to make factual findings on appeal 

“ ‘should be exercised sparingly’ ”; “ ‘[a]bsent exceptional circumstances, no 

such findings should be made’ ”].) 
14

We also deny Zand’s “Motion to Vacate Order Under Appeal Due to 

Said Perjuries in Special Motion to Strike.” Zand has not shown perjury, nor 

has he established any basis to “vacate” the order he is challenging in the 

present appeal.6 

E. Attorney Fees 

Section 425.16, subdivision (c)(1) states that, subject to exceptions not 

relevant here, a defendant prevailing on a motion to strike under the antiSLAPP statute “shall be entitled to recover that defendant’s attorney’s fees 

and costs.” As noted, the trial court awarded $5,500 in attorney fees and 

costs to Sukumar. Sukumar has filed a motion asking this court to direct 

that he also be awarded attorney fees incurred on appeal, with the amount to 

be determined by the trial court on remand. Zand filed an opposition. 

Sukumar’s motion is granted. An award of attorney fees, which must 

include fees incurred on appeal, is mandatory under the anti-SLAPP statute. 

(Trapp v. Naiman (2013) 218 Cal.App.4th 113, 122.) Zand’s wide-ranging 

arguments to the contrary provide no basis to disregard this rule. The 

amount of appellate attorney fees shall be determined by the trial court on 

remand. (Area 51 Productions, Inc. v. City of Alameda (2018) 20 Cal.App.5th 

581, 605.)7

6 In connection with his opening appellate brief and the accompanying 

motions, Zand submitted two volumes of exhibits and a supporting 

declaration. We disregard these filings to the extent they include materials 

that are not part of the appellate record or the subject of a granted request 

for judicial notice. 

7 In addition to the motions we have discussed in the text, Sukumar 

filed a “Notice of Errata” to correct certain record citations in his respondent’s 

brief. The notice was followed by an objection from Zand, a reply from 

Sukumar, and a further opposition by Zand. To the extent these filings 

suggest further or revised briefing should occur, those requests are denied. 
15

III. DISPOSITION

The order granting Sukumar’s motion to strike Zand’s FACC under the 

anti-SLAPP statute is affirmed. Pursuant to section 425.16, 

subdivision (c)(1), Sukumar’s request for attorney fees incurred on appeal is 

granted, with the amount to be determined by the trial court on remand. 

Sukumar shall recover his costs on appeal. 

STREETER, J. 

WE CONCUR:

BROWN, P. J.

GOLDMAN, J.

Finally, in response to this court’s “Notice of Oral Argument Election”

directing the parties to notify the court if they are aware of a reason why any 

of the justices in this division should not participate in the proceeding, Zand 

filed a document suggesting one justice should be recused. The suggestion is 

without merit and the recusal request is denied.