Bagheri v. Adeli-Nadjafi CA2/7

Filed 5/29/13 Bagheri v. Adeli-Nadjafi CA2/7 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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., 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.

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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.