Filed 5/29/13 Bagheri v. Adeli-Nadjafi CA2/7
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 SEVEN


EBRAHIM BAGHERI et al.,                                              B239551

         Cross-Defendants and Appellants,                            (Los Angeles County
                                                                     Super. Ct. No. PC047981)
         v.

NAZILA ADELI-NADJAFI,

         Cross-Complainant and Respondent.




                   APPEAL from an order of the Superior Court of Los Angeles County,
Melvin D. Sandvig, Judge. Reversed and remanded.


                   Brian K. Jacobs for Cross-Defendants and Appellants.


                   Ghods Law Firm, Mohammed K. Ghods, William A. Stahr and Ruben
Escobedo III, for Cross-Complainant and Respondent.

                             ______________________________________
       Appellants Ebrahim Bagheri and Ghamar Fazlelahi appeal from the order entered
in favor of respondent Nazila Adeli-Nadjafi denying appellants’ anti-SLAPP motion as
untimely because the motion, filed by facsimile, was not printed until after the clerk’s
office closed for the day. Appellants claim the trial court erred in finding their motion
untimely. In addition, appellants assert the trial court erred in denying their nunc pro
tunc motion without reviewing its merits. As will be explained, the trial court erred when
it found appellants’ anti-SLAPP motion was untimely. There is no clear definition of
when a filing via facsimile (fax) has been received by the clerk’s office. The ambiguity
in the rules leads to conflicting interpretations. In addition, appellants presented evidence
that they transmitted the motion prior to 4:30 p.m. via their fax transmission report and
there was no evidence respondent suffered prejudice as a result of appellants’ filing.
Accordingly, we reverse and remand to the trial court.
                  FACTUAL AND PROCEDURAL BACKGROUND1
       Appellants filed a complaint against respondent alleging breach of contract,
intentional misrepresentation, intentional infliction of emotional distress, negligence,
accounting, and nuisance. Respondent filed a cross-complaint against appellants alleging
causes of action for invasion of privacy, intentional infliction of emotional distress,
defamation, and nuisance. Respondent served their cross-complaint on August 29, 2011.
Anti-SLAPP Motion
       Appellants prepared a 27 page anti-SLAPP motion in response to respondent’s
cross-complaint. Pursuant to Code of Civil Procedure section 425.16, the deadline for
appellants to file an anti-SLAPP motion to respondent’s cross-complaint was on
November 2, 2011 – 652 days from the date of service of the cross-complaint.



1
      We describe only the facts necessary to reach a determination on the timeliness of
the motion to strike.
2
      The 65 days is the total of 60 days afforded by Code of Civil Procedure section
425.16, subdivision (b), and the additional five days when service is done by mail under
Code of Civil Procedure section 1013, subdivision (a).
                                              2
       Appellants submitted the anti-SLAPP motion to the Chatsworth Courthouse
Clerk’s Office on November 2, 2011, via facsimile. The fax began its transmission from
appellants’ fax machine at 4:05 p.m. and according to the transmission report from the
appellants’ fax machine, the transmission was completed at 4:09 p.m. The clerk’s office
closes for business at 4:30 p.m. Pursuant to Los Angeles County Superior Court Local
Rule 2.22(b)(2), any fax received after close of business is filed the next business day.
(Local Rule 2.22(b)(2).) There is no evidence in the record of the exact time that the fax
machine in the clerk’s office received the transmission of the motion from appellants’ fax
machine or of the time the machine in the clerk’s office completed printing the motion.
However, the copy of the motion in the superior court record contains a notation from the
clerk’s office: “Nov. 03 2011 filed by FAX” and a file stamp indicating that the
document was filed on November 3, 2011.
       Respondent objected and opposed the anti-SLAPP motion arguing it was
untimely because it was filed after the November 2, 2011 deadline. In their reply
appellants argued that although the motion was filed one day late, the trial court should
decide the merits of the motion because the reason for the delay in filing was a “traffic
jam” in the receiving court’s fax machine and because respondent had not articulated any
prejudice as a result of the late filing. Appellants attempted to resolve the issue of their
untimely motion, by filing a nunc pro tunc motion requesting the trial court order that the
date of filing be changed to November 2, 2011. On January 5, 2012, respondent filed her
formal opposition to the nunc pro tunc motion.
The Hearing
       At the hearing held on January 18, 2012, the trial court denied the anti-SLAPP
motion as untimely because it was not filed within the proper time limit; the nunc pro
tunc motion was denied for the same reasons. Appellants filed this timely appeal.
                                         DISCUSSION
       This appeal centers on two issues: (1) whether the trial court properly rejected the
anti-SLAPP motion as untimely; and (2) whether the trial court properly rejected the


                                              3
nunc pro tunc motion. As we shall explain, the court erred in rejecting appellants’
motion on the grounds it was untimely filed.
I.     Anti-SLAPP Motion
       The California Rules of Court (CRC) provide available procedures and
requirements for the filing of motions via facsimile. CRC rule 2.304(a) provides that a
party can file by facsimile if the court in which the document is to be filed allows it.
(CRC rule 2.304, subd. (a).) CRC rule 2.304(a) also provides that the local rule
governing filing by facsimile “must state that direct fax filing may be made under the
rules of [court].” (Ibid.) “Absent statewide directions to the contrary, each court
determines when it accepts documents for filing, and it may apply those deadlines created
by its existing rules to filings made by fax.” (Rosenberg v. Superior Court (1994) 25
Cal.App.4th 897, 900.) In Los Angeles County Superior Court under the local rules of
court, any facsimile received after 4:30 p.m. will be deemed received as of the next
business day. (L.A. Co. Sup. Ct., L.R. 2.22(b)(2); emphasis added.) The local rule does
not define the term received.
       Here the trial court interpreted the word “received” in Local Rule 2.22(b)(2) to
mean the fax must be printed by the machine in the clerk’s office before it can be
received by the clerk: “[B]oth CRC 2.304(d) and LR 2.22(b)(2) use the term ‘received’
to trigger the filing date of a doc[ument] submitted to the court by fax. As pointed out in
the opposition, it would not make sense to require the Clerk’s Office to file a doc[ument]
transmitted by fax which has not yet been printed/received [because] there would be
nothing tangible to file.”
       At one time it might have been appropriate to construe the term “received”
narrowly to mean that the document must be printed and in the “hands of the clerk.” (See
Tregambo v. Comanche Mill & Mining Co. (1881) 57 Cal. 501 [holding a document is
not received by the court until it is in the hands of the clerk].) However, the “hands of
the clerk” rule no longer reflects practical reality or modern technology allowing for
“e-filing” and fax filing. Thus, we have several concerns about the trial court’s
interpretation of Local Rule 2.22(b)(2) and in particular of the term “received.” First

                                              4
nothing in the California Rules of Court supports the narrow definition of the term. The
California Rules of Court do not require that a document filed by facsimile actually be
printed to qualify as received. CRC rule 2.301(4) defines “fax filing” as “the fax
transmission of a document to a court that accepts such documents.” (CRC rule
2.301(4).) CRC rule 2.301(2) defines a fax transmission “as the transmission of a
document by a system that encodes a document into electrical signals, transmits these
electrical signals over a telephone line, and reconstructs the signals to print a duplicate of
the original document at the receiving end.” (CRC rule 2.301(2).) Consequently to
qualify as a fax transmission under the CRC, the electronic signals of the document must
be reconstructed (in the fax machine of the receiving party) to print. The definition does
not require that the document be printed by the fax machine.3
       Second, the trial court’s construction of the term “received” fails to account for the
possibility that a fax transmission could be received by the clerk’s fax machine prior to
4:30 p.m., but unable to print until after 4:30 p.m. because the document was effectively
“waiting in line” in the machine’s queue behind other documents to be printed. Local
Rule 3.4(a) addresses this possibility for those filing documents in person. Local Rule
3.4(a) allows a party filing in person to complete their filing after 4:30 p.m. so long as the
filer is inside the clerk’s office prior to 4:30 p.m. (L.A. Co. Sup. Ct., L.R. 3.4(a).) This
rule allows those people “waiting in line” when the office closes the opportunity to file
their documents even if they are unable to reach the clerk’s window prior to 4:30 p.m.


3
       The rules concerning “service” by facsimile provide an interesting comparison.
Service by fax is complete on transmission of the entire document to the receiving party’s
fax machine. Service that is completed after 5:00 p.m. is deemed to have occurred on the
next court day. (CRC rule 2.306(g); emphasis added.) The significant distinction
between the rules for service by fax and filings by fax is the reference to when service is
complete. The use of transmission in the requirement refers to the definition provided in
CRC rule 2.301 as when the sender’s machine completes sending its document. (CRC
rule 2.301(2).) Thus, service by fax is complete upon transmission, while filing requires
receipt by the clerk’s machine. CRC rule 2.304(d) provides for a fax transmission report
to be printed to indicate when the sending party’s machine completed the transmission.
There is no such rule in regards to when the clerk’s office has received the transmission.

                                              5
Here the trial court’s narrow interpretation of “received” denies fax filers the benefit
afforded those who file documents in person.4
       In addition, the trial court’s rejection of the motion was unwarranted in this case
given that appellants’ demonstrated they timely began transmitting the document from
their fax machine at 4:05 p.m. and that the transmission was complete by 4:09 p.m.
Furthermore there is no evidence in the superior court record of the exact time the
facsimile machine in the clerk’s office received the document. There is no transmission
report from the clerk’s office fax machine nor is there any notation on the face of the
motion indicating the date or time when the fax machine received or printed the
document. Thus there is no objective or independent evidence from which one can verify
when the document was received by the clerk’s office. From appellants’ perspective
there was nothing more they could do to demonstrate the timeliness of their filing.
       Finally, respondent has not demonstrated any prejudice by the late filing of
appellants’ motion. In fact, respondent reserved her right to oppose the anti-SLAPP
motion on the merits in the event the trial court granted leave to appellants to file their
motion. The respondent has not articulated, nor did the trial court offer, any sound reason
for rejecting the motion on the technicality of when it was filed.5


4
        While we do not agree with the trial court’s interpretation of the word “received”
in the context of fax filings, we also note concerns about appellants’ construction of the
fax filing rule. Appellants contend the time transmission is complete from their office,
here, 4:09 p.m., should determine whether the motion has been timely filed. Several
issues arise with this interpretation. There is no way for the clerk’s office to know when
the facsimile is finished transmitting from the sender’s fax machine. To the knowledge
of this court, the clerk’s office must rely on the time stamp, if any, associated with the
printing of the fax on its machine. As there are many different fax machines, there are
differing references by the time stamps printed on the received copy—either the time of
receipt or the time of printing. Thus, the appellants’ interpretation does not provide
sufficient guidance for the clerk. Rather it creates uncertainty for the clerk and would
most certainly invite a nunc pro tunc motion for all filings made via fax at or near the
time the clerk’s office closes for business each day.
5
      Likewise the length of the motion does not provide an independent ground for
denying the anti-SLAPP motion. Respondent also asserted that the trial court properly
                                              6
Accordingly, in view of the totality of these circumstances and in light of the long
standing preference and policy to determine matters on their merits (Shamblin v. Brattain
(1988) 44 Cal.3d 474, 478 [“[i]t is the policy of the law to favor, whenever possible, a
hearing on the merits”]), we conclude that the trial court abused its discretion in denying
appellants anti-SLAPP motion on the grounds that it was untimely.6
                                        DISPOSITION
         The order is reversed and remanded to the trial court to conduct further
proceedings in accord with the views expressed in this opinion. Upon remand,
respondent should be allowed the opportunity to file and serve an opposition to the anti-
SLAPP motion on the merits, and appellants should be afforded an opportunity to file a
reply.
         Appellants are entitled to their costs on appeal.




                                                                               WOODS, J.


We concur:




                PERLUSS, P. J.                                                 ZELON, J.



rejected appellants’ anti-SLAPP motion based on its length because it exceeded the page
limited in Local Rule 2.22(b)(8). We do not agree. Local Rule 2.22(b)(8) sets a limit of
10 pages for fax filings for exhibits, declarations, or other attachments. (L.A. Co. Sup.
Ct., L.R. 2.22(b)(8); emphasis added.) The trial court deemed appellants’ anti-SLAPP
motion in excess of this limit. However, appellants’ 27-page motion contained only four
pages of additional documentation, well under the 10-page limit.
6
       In light of our conclusion we do not reach the merits of the arguments regarding
the nunc pro tunc motion.
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