Case Name: Derar Hawari v. Michael Prozan, et al.

Case No.: 18CV323479

Motion of Defendants Sharon Ajlouni and Karen Ajlouni for a Special Motion to Strike the Complaint Pursuant to CCP §425.16

Defendant Afou Shadafni (“Shadafni”) filed a lawsuit against plaintiff Derar Hawari (“Hawari”) and others, including Erik Searles (“Searles”) and SCI Apparel, Ltd. (“SCI”), in Santa Clara County Superior Court, case number 1-12-CV-222582 (“Shadafni Action”). (Complaint, ¶¶6 – 8.)

In a matter related to the Shadafni Action, defendants Sharon Ajlouni and Karen Ajlouni (collectively, “Ajlounis”) filed a lawsuit against Hawari, Searles and SCI in Santa Clara County Superior Court, case number 1-13-CV-242018 (“Ajlouni Action”). (Complaint, ¶¶6 – 8.)

On or about September 30, 2013 , mediation of the Shadafni Action and Ajlouni action occurred, resulting in a settlement agreement and mutual release (“Settlement Agreement”). (Complaint, ¶8.) Under the terms of the Settlement Agreement, SCI agreed to pay Shadafni and the Ajlounis an amount totaling $305,000. (Complaint, ¶8 and Exh. A.) According to Hawari, neither he nor Searles agreed to be responsible for the settlement payments. (Id.) According to Hawari, only SCI was responsible for settlement payments. (Id.)

Subsequent to the execution of the settlement agreement, SCI defaulted under the terms of the Settlement Agreement. (Complaint, ¶9.) Thereafter, Sharon Ajlouni and Karen Ajlouni obtained judgments in the amount of $90,983.61 each against Hawari, Searles and SCI based on stipulated judgments executed by Hawari. (Complaint, ¶10.) These judgments include attorney fees, costs, and interest. (Id.)

Hawari contends the judgments obtained are void and now seeks to set aside the judgments against him. (Complaint, ¶11.) The Settlement Agreement identified only SCI as the defendant responsible for payment. (Id.) Hawari did not agree to be responsible for payment in the event of a default. (Id.) The judgments in favor of the Ajlounis were obtained on February 23, 2015 pursuant to stipulation with a predated (October 24, 2013) signature by Hawari. (Id.) Hawari demanded Shadafni and the Ajlounis and their counsel acknowledge the judgments are void and that all efforts to collect on the judgments cease. (Complaint, ¶12.)

On February 14, 2018, Hawari filed a complaint against the Ajlounis, among others, asserting causes of action for:

(1) Declaratory Relief
(2) Damages/ Imposition of Constructive Trust
(3) Injunctive Relief

On August 15, 2018, defendant Ajlounis filed the motion now before the court, a special motion to strike Hawari’s complaint pursuant to Code of Civil Procedure section 425.16.

I. Notice and timeliness.

As a preliminary matter, plaintiff Hawari contends the defendant Ajlounis did not provide adequate notice of this motion.

Unless otherwise ordered or specifically provided by law, all moving and supporting papers shall be served and filed at least 16 court days before the hearing. The moving and supporting papers served shall be a copy of the papers filed or to be filed with the court.

(Code Civ. Proc., §1005, subd. (b); emphasis added.)

Plaintiff Hawari acknowledges that while the notice of motion was timely filed and served on or about August 15, 2018, defendant Ajlounis did not file or serve their supporting papers (memorandum of points and authorities, declaration, request for judicial notice) until September 20, 2018 and did so by electronic-mail or electronic transmission, thereby increasing the requisite notice period by two days pursuant to Code of Civil Procedure section 1010.6, subdivision (a)(4)(B). Based on a hearing date of October 16, 2018 and the fact that October 8, 2018 is a court holiday, defendants were required to serve all moving and supporting papers no later than September 19, 2018.

Additionally, plaintiff Hawari contends the motion is untimely. Code of Civil Procedure section 425.16, subdivision (f) states, in relevant part, “The special motion may be filed within 60 days of the service of the complaint or, in the court’s discretion, at any later time upon terms it deems proper.” Plaintiff Hawari notes that the summons and complaint were served on the Ajlounis on July 17, 2018 as evidenced by the Notice and Acknowledgement of Receipt filed on the same date. The 60th day following July 17, 2018 is Saturday, September 15, 2018 and so defendant Ajlounis had until Monday, September 17, 2018 to file the special motion to strike. Although the Ajlounis filed a notice of motion on August 15, 2018, defendant Ajlounis did not file or serve any other supporting papers, including their memorandum of points and authorities, until September 20, 2018. Thus, according to plaintiff Hawari, the defendant Ajlounis’ motion to strike is untimely.

In this court’s opinion, defendant Ajlounis did not timely file this special motion to strike simply by filing the notice of motion. “Unless otherwise provided by the rules in this division, the papers filed in support of a motion must consist of at least the following: (1) A notice of hearing on the motion; (2) the motion itself; and (3) a memorandum in support of the motion or demurrer.” (Cal. Rules of Court, rule 3.1112, subd. (a); emphasis added.)

Clearly, the 60-day time period set forth in subdivision (f) of section 425.16 is not jurisdictional. The trial court has the legal authority to allow the filing of an anti-SLAPP suit motion to strike “at any later time [after “60 days of the service of the complaint”] upon terms it deems proper.” The nonjurisdictional nature of the time limit is also emphasized by the permissive “may” in the setting forth of the time limit (“The special motion may be filed”).

But while the time period is not jurisdictional, the provision specifying that the court may allow later filings of the motion still has consequences. There is no right to file an anti-SLAPP suit motion beyond the deadline. It can then only be “filed” “in the court’s discretion.”

(Lam v. Ngo (2001) 91 Cal.App.4th 832, 840.)

This language might be readily understood to mean that a trial court need not entertain, but can instead refuse to hear, a motion filed outside the 60 days. And indeed, some courts have suggested that this provision empowers a trial court to require advance leave before the defendant is permitted to file such a motion.

(Hewlett-Packard Co. v. Oracle Corp. (2015) 239 Cal.App.4th 1174, 1186.)

Under the above authority, the court declines to hear defendant Ajlounis’ special motion to strike as untimely and is therefore DENIED.