Filed 5/29/13 Bagheri v. Adeli-Nadjafi CA2/7 

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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 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. 

______________________________________ 
2 

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). 
3 

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 
4 

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 
5 

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. 
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’ 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 
7 

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 antiSLAPP 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.