Filed 5/29/13 Bagheri v. Adeli-Nadjafi CA2/7 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION SEVEN

EBRAHIM BAGHERI et al.,
Cross-Defendants and Appellants,

v.
NAZILA ADELI-NADJAFI,
Cross-Complainant and Respondent. B239551
(Los Angeles County Super. Ct. No. PC047981)

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

Brian K. Jacobs for Cro ss-Defendants and Appellants.

Ghods Law Firm, Mohammed K. G hods, William A. Stahr and Ruben Escobedo III, for Cross-Comp lainant and Respondent.

___________________ ___________________2 Appellants Ebrahim Bagheri and Ghamar F azlelahi appeal from the order entered in favor of respondent Naz ila Adeli-Nadjafi denying appella nts’ anti-SLAPP motion as untimely because the motion, filed by facsim ile, 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 w ill be explained, the trial court erred when it found appellants’ anti-SLAPP motion was untim ely. There is no clear definition of when a filing via facsimile (fax ) has been received by the cl erk’s office. The ambiguity in the rules leads to conflicting interpretations . In addition, appellants presented evidence that they transmitted the moti on prior to 4:30 p.m. via th eir fax transmission report and there was no evidence respondent suffered prejudi ce as a result of appellants’ filing. Accordingly, we reverse and remand to the trial court.
FACTUAL AND PROCEDURAL BACKGROUND 1 Appellants filed a complaint against re spondent alleging breach of contract, intentional misrepresentation, intentional in fliction of emotional distress, negligence, accounting, and nuisance. Res pondent filed a cross-complaint against appellants alleging causes of action for invasion of privacy, in tentional 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 – 65 2 days from the date of serv ice 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 affo rded by Code of Civil Procedure section 425.16, subdivision (b), and the additional fi ve days when service is done by mail under Code of Civil Procedure section 1013, subdivision (a).3 Appellants submitted the anti-SLAPP motio n to the Chatsworth Courthouse Clerk’s Office on November 2, 2011, via facs imile. The fax began its transmission from appellants’ fax machine at 4:05 p.m. and ac cording to the transmission report from the appellants’ fax machine, the tr ansmission 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 th e motion from appellants’ fax
machine or of the time the mach ine in the clerk’s office co mpleted 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 FA X” and a file stamp indicating that the document was filed on November 3, 2011. Respondent objected and opposed th e anti-SLAPP motion arguing it was untimely because it was filed after the Nove mber 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 respo ndent had not articulated any prejudice as a result of the late filing. Appe llants attempted to resolve the issue of their untimely motion, by filing a nunc pro tunc motio n 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) whet her the trial court properly rejected the anti-SLAPP motion as untimely; and (2) whethe r the trial court properly rejected the4 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 facs imile. CRC rule 2.304(a) provides that a party can file by facsimile if th e 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 docum ents for filing, and it may a pply 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 printe d 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] submitte d to the court by fax. As pointed out in the opposition, it would not make sense to requi re the Clerk’s Office to file a doc[ument] transmitted by fax which has not yet been pr inted/received [becau se] 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 pr inted 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 ha nds of the clerk].) However, the “hands of the clerk” rule no longer reflects practical real ity 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.” First5 nothing in the California Rules of Court suppo rts the narrow definition of the term. The
California Rules of Court do not require that a document f iled 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 th at accepts such documents.” (CRC rule 2.301(4).) CRC rule 2.301(2) defines a fa x transmission “as the transmission of a document by a system that en codes 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, th e 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 re ceived 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 machin e’s queue behind other document s to be printed. Local Rule 3.4(a) addresses this possibility for t hose filing documents in person. Local Rule 3.4(a) allows a party filing in person to complete their filing af ter 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 th e 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 facsim ile 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 de emed to have occurred on the next court day. (CRC rule 2.306(g); em phasis 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 transmis sion in the requirement refers to the definition provided in CRC rule 2.301 as when the sender’s mach ine 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 regard s to when the clerk’s office has received the transmission.6 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’ dem onstrated they timely began transmitting the document from their fax machine at 4:05 p.m. and that th e transmission was complete by 4:09 p.m.
Furthermore there is no eviden ce in the superior court re cord of the exact time the
facsimile machine in the cler k’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 in dependent evidence from which one can verify
when the document was receiv ed by the clerk’s office. From appellants’ perspective there was nothing more they could do to dem onstrate the timeliness of their filing. Finally, respondent has not demonstrated any prejudice by the late filing of appellants’ motion. In fact, respondent re served her right to oppose the anti-SLAPP
motion on the merits in the even t 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 te chnicality of when it was filed. 5

4 While we do not agree with the trial cour t’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 tr ansmission is comple te from their office, here, 4:09 p.m., should determine whether th e 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 tr ansmitting 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 mach ine. As there are many different fax machines, there are differing references by the tim e stamps printed on the received copy—either the time of receipt or the time of printing. Thus, th e appellants’ interpre tation does not provide sufficient guidance for the cler k. Rather it creates uncerta inty 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 doe s not provide an independent ground for denying the anti-SLAPP motion. Respondent also a sserted that the trial court properly7 Accordingly, in view of the totality of these circumstance s and in light of the long standing preference and policy to de termine matters on their merits ( Shamblin v. Brattain (1988) 44 Cal.3d 474, 478 [“[i]t is the polic y of the law to favor, whenever possible, a hearing on the merits”]), we c onclude that the trial court a bused its discretion in denying appellants anti-SLAPP motion on th e 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 antiSLAPP motion on the merits, and appellants shou ld be afforded an op portunity 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 ag ree. Local Rule 2.22(b)(8) sets a limit of 10 pages for fax filings for exhi bits, 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, a ppellants’ 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 re ach the merits of the arguments regarding the nunc pro tunc motion.