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Page 1 Filed 8/30/24 (unmodified opn. attached)
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FOUR
SHARONDA TAYLOR et al.,
Plaintiffs and Respondents,
A168333
v.
(Alameda County Super. Ct.
No. 23CV028922)
TESLA, INC.,
Defendant and Appellant.
ORDER MODIFYING OPINION;
NO CHANGE IN JUDGMENT
BY THE COURT: *
The court orders that the opinion filed in this appeal on August 8, 2024,
be modified as follows:
1. On page 7, in the last sentence of the paragraph that continues from
page 6, add quotation marks around the word “omissions,” so the
sentence reads:
Claiming to have been taken by surprise, Crossroads sued Fannie
Mae, seeking to rescind the sale on the ground that deceptive
statements and “omissions” by Fannie Mae in the bankruptcy
proceedings deprived it of its statutory redemption rights.
2. On page 10, in the first paragraph that begins “It seems clear,” delete
the third sentence that reads (retaining footnote five):
Brown, P. J., Streeter, J., Hite, J. (Judge of the Superior Court of
California, City and County of San Francisco, assigned by the Chief Justice
pursuant to article VI, section 6 of the California Constitution.)
*
1Page 2 We note that the “omissions” in Crossroads—information
withheld in discovery and a silently communicated rejection of
settlement overtures—necessarily expressed a message.
Insert in place of the deleted sentence indicated above, continuing
within the same paragraph, the following substitute language (ending
with footnote 5):
We do note that the “omissions” in Crossroads—apparently,
information withheld in discovery and a silently communicated
rejection of settlement overtures—necessarily expressed a
message pertinent to the tort causes of action at issue there.
3.
On page 17, In the second sentence of the first paragraph, delete the
language “made no effort to produce anything” and replace with the
language “produced virtually nothing” so the sentence reads:
Faced with many requests for information that had nothing to do
with the allegations in Vaughn, Tesla produced virtually nothing.
The modifications effect no change in the judgment.
Date: _________________________
___Brown________________P. J.
2Page 3 Trial Court:
Superior Court of California, County of Alameda
Trial Judge:
Hon. Julia Spain
Counsel:
Reed Smith, Raymond A. Cardozo; Holland & Knight and
Christina T. Tellado for Defendant and Appellant.
Nichols Kaster, Matthew C. Helland, Jasjit Mundh;
California Civil Rights Law Group, Lawrence Organ;
Bryan Schwartz Law and Bryan Schwartz for Plaintiffs
and Respondents.
3Page 4 Filed 8/8/24 (unmodified opinion)
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FOUR
SHARONDA TAYLOR et al.,
Plaintiffs and Respondents,
A168333
v.
(Alameda County Super. Ct.
No. 23CV028922)
TESLA, INC.,
Defendant and Appellant.
In this Private Attorneys General Act of 2004 (PAGA) (Lab. Code,
§ 2698 et seq.) action, Tesla Inc. (Tesla) appeals from the denial of a motion
under the anti-SLAPP statute (Code Civ. Proc., § 425.16). 1 Seeing no merit
to any of Tesla’s arguments, we affirm.
I.
Plaintiffs Sharonda Taylor, Shaka Green, Tatianna Smith and Zenobia
Milligan worked for Tesla for different periods between July 2015 through
March 2022. Through their counsel, Bryan Schwarz Law (BSL), they each
requested that Tesla provide them with certain personnel records pursuant to
the California Labor Code.
BSL serves as counsel for the plaintiffs in Vaughn v. Tesla, Alameda
County Superior Court No. RG17882082 (Vaughn), a class action filed
All undesignated statutory references are to the Code of Civil
Procedure.
1
1Page 5 against Tesla on November 13, 2017. As alleged, the Vaughn class consists of
“all African-Americans who were employed on the production floor at the
Tesla Factory at any time from November 9, 2016 to the final disposition of
[the Vaughn] action.” During the pendency of this appeal, a class
certification order issued in Vaughn. 2
Taylor, Green, Smith, and Milligan are members of the Vaughn class.
On behalf of the class, the Vaughn complaint alleges racial discrimination
and racial harassment claims against Tesla under the Fair Employment and
Housing Act. These allegations of race discrimination in Vaughn have been
closely watched and widely reported on by the press.
Prior to certification of the Vaughn class, considerable discovery
activity took place. This discovery activity included a series of motions to
compel and an associated motion for a protective order in the summer 2020.
The motions focused generally on BSL’s attempt to obtain witness contact
information, internal complaints and investigation materials pertaining to
incidents of racial harassment at Tesla.
In June 2020, the Vaughn court issued orders addressing the issues
raised in these discovery motions, including the manner in which privacy
notices to absent class members should be handled. 3 In its orders, the
Vaughn court suggested “by way of observation” that the parties “might
consider” including “an opt-in privacy waiver for review of complaint and
personnel files.” This suggestion was designed to confine the universe of
On our own motion, we take judicial notice of the May 17, 2024 class
certification order in Vaughn. (Evid. Code, § 452, subds. (c)–(d).)
2
See Belaire-West Landscape, Inc. v. Superior Court (2007)
149 Cal.App.4th 554, 561 (approving privacy waiver opt-in procedure in precertification class discovery where defendant employer was being required to
provide confidential personnel information about absent class members).
3
2Page 6 “files to be reviewed” to those who signed privacy waivers, thus limiting the
pre-certification discovery burden on Tesla.
A few months later, the Vaughn court ordered Tesla to produce
complaints pertaining to incidents of racial harassment (including
investigation and resulting discipline), but only for those complaining
workers who signed a privacy waiver. In accordance with this order, from
October to November 2020, BSL sent Tesla privacy waivers in five batches,
after which Tesla was to produce the waivants’ race harassment complaints.
Beginning in October 2020, on behalf of hundreds of Tesla employees
for whom privacy waivers were provided, BSL sent Tesla a series of statutory
personnel records requests under Labor Code sections 226, 432, and 1198.5.
The requestors included Milligan, Taylor, Green and Smith. BSL
resubmitted the personnel records requests for Taylor and Milligan in early
2021, apparently after Tesla questioned whether the digital signatures on the
privacy waivers accompanying the first set of requests for these two
individuals were adequate.
Later in 2021, other procedural events in Vaughn impacted the
timetable for Tesla’s compliance with these discovery and Labor Code records
requests. In September 2021, the Vaughn court granted in part and denied
in part Tesla’s motion to compel arbitration of the claims brought by two
Vaughn plaintiffs, and Tesla appealed. The court then stayed all trial court
proceedings in Vaughn until the appeal was resolved.
In February 2022, Tesla’s counsel wrote to BSL and took the position
that the Vaughn stay suspended any obligation to respond to the pending
Labor Code records requests. In line with that position, Tesla produced
nothing in response to these requests. Having received no responses to its
information requests under the Labor Code, on April 19, 2022, BSL sent a
3Page 7 letter to the California Labor and Workforce Development Agency (LWDA) on
behalf of Taylor, Green, Smith, and Milligan alleging PAGA violations.
In its letter to LWDA, BSL argued that “internal complaints made by
an employee and evidence of an ensuing non-attorney investigation are
included within the definition of personnel files.” It also argued that Tesla
had “repeatedly provided deficient personnel files in violation of Labor Code
§ 1198.5” by not “includ[ing] any record of internal complaints that were
made by the requesting employee or former employee or any resulting
investigation.” BSL further asserted that Tesla’s productions of personnel
records were deficient because Tesla “routinely omitted requestors’ job
applications and any of the documents that the requestor signed at the start
of employment” and had produced some documents, such as “performance
reviews . . . in unintelligible formats, such as tables that are split across
dozens of pages with no indication of their actual organization.”
In January 2023, Division Five of this court affirmed the Vaughn
court’s partial denial of Tesla’s motion to compel arbitration. (Vaughn v.
Tesla, Inc. (2023) 87 Cal.App.5th 208.) Following the issuance of the
remittitur in that appeal, the stay on proceedings in Vaughn was lifted. The
allegations of Labor Code violations in BSL’s notice letter to the LWDA
remained live, however, since by then Tesla had been delinquent in
responding to the statutory records requests for the better part of a year.
This PAGA action followed. On March 7, 2023, represented by BSL,
plaintiffs filed their PAGA complaint seeking penalties for Tesla’s failure to
respond to Labor Code personnel records requests. The complaint alleges a
single cause of action alleging as predicate violations Tesla’s refusal to
comply with Labor Code sections 1198.5, 226, and 432. Tesla answered and
filed a special motion to strike pursuant to the anti-SLAPP statute.
4Page 8 The trial court denied Tesla’s anti-SLAPP motion on July 7, 2023. The
court found that “Tesla did not meet its initial burden as the movant to make
a ‘threshold showing that [Plaintiffs’] claims arise from petitioning activity
within the purview of the anti-SLAPP statute.’ ” “On this record,” the court
ruled, “Plaintiffs were merely exercising their statutory rights under the
Labor Code to inspect and copy wage statements, signed instruments, and
personnel files, independent of anything happening in Vaughn.”
Now before us is Tesla’s appeal from the denial of its anti-SLAPP
motion in the PAGA case.
II.
We assume familiarity with the two-step framework of analysis under
the anti-SLAPP statute. (See, e.g., Wilson v. Cable News Network, Inc. (2019) 7 Cal.5th 871, 884–885; Area 51 Productions, Inc. v. City of Alameda (2018)
20 Cal.App.5th 581, 593–594; id. at pp. 594–601 [first prong], 602–604
[second prong].) Our review is de novo at both steps. (Area 51 Productions,
at pp. 593–594.)
A.
In support of its contention that denial of its anti-SLAPP motion was
erroneous, Tesla relies heavily on Crossroads Investors, L.P. v. Federal
National Mortgage Assn. (2017) 13 Cal.App.5th 757 (Crossroads). That case
involved a lawsuit filed and pursued by a real estate investment partnership
(Crossroads) against the Federal National Mortgage Association (Fannie
Mae) in connection with a chapter 11 bankruptcy proceeding. (Id. at p. 769.)
Because of the centrality of Crossroads to Tesla’s argument, we begin with an
overview of the case. The appellate opinion there is somewhat complex, and
to apply its holding properly, some nuances must be kept in mind.
Crossroads, the owner of an apartment building, was the debtor on a
mortgage loan that fell into default at the height of the mortgage foreclosure
5Page 9 crisis in 2011. (Crossroads, supra, 13 Cal.App.5th at p. 766.) On the day
before a scheduled foreclosure sale, Crossroads filed for bankruptcy. (Id. at
p. 767.) Fannie Mae was the mortgage holder and a creditor in the
bankruptcy. Many of the alleged acts by Fannie Mae took place in the course
of the bankruptcy proceedings while an automatic stay was in place (id. at
pp. 767–771), but at its core the seven-count complaint Crossroads filed after
the bankruptcy was over bore the hallmarks of a wrongful foreclosure claim.
(See Miles v. Deutsche Bank National Trust Co. (2015) 236 Cal.App.4th 394,
407–410.)
Despite having sent the required written notice of default informing
Crossroads it could reinstate the delinquent mortgage loan by tendering the
overdue amount no later than five business days before the foreclosure sale
(Crossroads, supra, 13 Cal.App.5th at p. 766), and despite having orally
promised in settlement discussions that, after the automatic bankruptcy stay
was lifted, it would give advance notice before proceeding with a foreclosure
sale (id. at pp. 770–771), Fannie Mae allegedly sold the mortgaged property
at a foreclosure auction immediately after the stay was lifted, without giving
the promised notice and without providing an accounting of exactly how
much was owed on the delinquent loan (id. at p. 771).
Crossroads had unsuccessfully argued in bankruptcy court as part of its
proposed plan of reorganization (which ultimately the bankruptcy court
rejected) that it should not have to pay a prepayment penalty in order to
redeem its mortgage loan, and it made a settlement proposal conditioned on
Fannie Mae waiving that penalty. (Crossroads, supra, 13 Cal.App.5th at
pp. 768–769.) In an interrogatory response in the bankruptcy proceeding,
Fannie Mae declined to provide the exact amount of the mortgage loan
delinquency. (Id. at p. 769.) And in the settlement discussions, Fannie Mae
refused to accept any tender of delinquent proceeds without the prepayment
6Page 10 penalty. (Id. at pp. 770–771.) After the stay was lifted, Fannie Mae
proceeded with a foreclosure sale to a willing buyer. (Id. at p. 771.) Claiming
to have been taken by surprise, Crossroads sued Fannie Mae, seeking to
rescind the sale on the ground that deceptive statements and omissions by
Fannie Mae in the bankruptcy proceedings deprived it of its statutory
redemption rights. (Id. at pp. 771–772.)
Against this backdrop, the trial court denied Fannie Mae’s anti-SLAPP
motion to strike the entire complaint. (Crossroads, supra, 13 Cal.App.5th at
p. 772.) A Third District Court of Appeal panel reversed. (Id. at pp. 793–
794.) 4 At the initial step of the anti-SLAPP analysis, the Crossroads panel
concluded that the first six causes of action in the state court case—which it
broadly termed the “tort causes of action”—were based on anti-SLAPP
protected activity. (Crossroads, at p. 777–785.) Relying on section 425.16,
subdivisions (e)(1) and (e)(2), the panel viewed the basis of these claims as
protected “because (1) [Fannie Mae’s] response to the interrogatory was a
‘writing made’ in the bankruptcy action, and (2) its omissions were ‘made in
connection with an issue under consideration or review by’ the bankruptcy
court.” (Id. at p. 778.)
At the second step of the anti-SLAPP analysis, the panel went on to
find the litigation privilege applicable to all of Crossroads’s tort theories.
(Crossroads, supra, 13 Cal.App.5th at pp. 785–787, citing Seltzer v. Barnes
(2010) 182 Cal.App.4th 953.) “[B]y concluding the anti-SLAPP statute
applies because Crossroads’ claims arose from the response to an
In a prior opinion, the panel affirmed. The California Supreme Court
granted review, depublished the prior opinion, and transferred the case back
to Court of Appeal for reconsideration in light of Baral v. Schnitt (2016) 1 Cal.5th 376. (Crossroads, supra, 13 Cal.App.5th at pp. 765–766.)
4
7Page 11 interrogatory and from statements and omissions made in settlement
discussions in the bankruptcy action and concerning issues under review in
the bankruptcy action, we readily find those statements and omissions have
‘some relation’ to the bankruptcy action and thus are privileged under section
47,” the court held. (Crossroads, at p. 787.) On that basis, it directed that all
of the tort claims be stricken for lack of minimal merit. (Id. at pp. 785–787.)
While the litigation privilege did not apply to the breach of contract
claim (Crossroads, supra, 13 Cal.App.5th at p. 787)—that claim involved the
same conduct alleged in the tort claims, but without any additional element
of deceit—the court concluded that most of Crossroads’ contract theories
lacked minimal merit because it failed to show proof of damages or evidence
that it had submitted valid tenders to Fannie Mae. (Id. at pp. 789–793.) One
sliver of Crossroads’ breach of contract claim survived (alleged breach of an
oral agreement to give notice of the foreclosure sale). (Id. at p. 788.) Except
for this one surviving theory of breach, the contract claim too was ordered
stricken. (Id. at pp. 793–794.)
B.
All of the tort claims in Crossroads, as we have noted, were based on
statements or information withheld by Fannie Mae in the course of discovery
or settlement negotiations in a bankruptcy proceeding. Framing their
arguments around Tesla’s contention that Crossroads controls here, the
parties to this appeal devote a great deal of attention to whether BSL’s
statutory personnel records requests were made “in Vaughn.” Plaintiffs
suggest that the class discovery process in Vaughn and the statutory
personnel records request process for individual Tesla employees proceeded
in parallel, but independently. Tesla, on the other hand, argues that the
class discovery process and the statutory records requests proceeded in a
coordinated way, with the Vaughn court overseeing, issuing orders, and
8Page 12 giving guidance relating to both. In our view, this debate over whether BSL’s
statutory records requests were made “in Vaughn” is not particularly
germane to Tesla’s primary step one argument.
Under section 425.16, subdivision (e)(2), Tesla contends, “ ‘A statement
is “in connection with” an issue under consideration by a court in a judicial
proceeding . . . if it relates to a substantive issue in the proceeding and is
directed to a person having some interest in the proceeding.’ ” (Crossroads,
supra, 13 Cal.App.5th at p. 779, original italics.) But Tesla overlooks a
crucial threshold issue. Subdivisions (e)(1) through (e)(3) of section 425.16 all
require a “written or oral statement or writing.” Unlike the scenario in
Crossroads, this case involves no protected activity covered by section 425.16,
subdivision (e)(2) because no “written or oral statement or writing” by Tesla
is an “element” of the PAGA claim at issue here. (Park v. Board of Trustees of
California State University (2017) 2 Cal.5th 1057, 1063.)
At most, to the extent any communication or other expressive activity
by Tesla is relevant, it is a matter of “incidental background.” (Bonni v. St.
Joseph Health System (2021) 11 Cal.5th 995, 1012; see Park, at p. 1064
[drawing “distinction between activities that form the basis for a claim and
those that merely lead to the liability-creating activity or provide evidentiary
support for the claim”].) At trial, plaintiffs may establish predicate violations
of Labor Code sections 226, 432, and 1198.5 in support of their PAGA claim
without offering any writing or any oral statements by Tesla. They need only
prove that they sent statutory demands for personnel files and never received
any files in response. It is certainly conceivable that, for context, some party
to the PAGA action might wish to offer, say, Vaughn discovery meet-andconfer correspondence or pleadings or orders from Vaughn—either in support
of the PAGA claim or by way of defense to it—but if such evidence were
9Page 13 offered, it would be relevant only as a collateral matter for background
purposes.
It seems clear, to be sure, why Tesla places so much weight on
Crossroads: The case finds “omissions” as well as affirmative statements to
be protected under section 425.16, subdivision (e). But in so holding, the
Crossroads court does not explain why the “omissions” at issue there were
treated as “written or oral statement[s] or writing[s]” within the meaning of
section 425.16, subdivision (e)(1) and (2). We note that the “omissions” in
Crossroads—information withheld in discovery and a silently communicated
rejection of settlement overtures—necessarily expressed a message. 5 In
circumstances where a refusal to speak is inherently expressive, the reading
of the statutory text adopted in Crossroads might be justified. But Tesla
While this aspect of the step one anti-SLAPP analysis in the
Crossroads opinion is somewhat opaque, the litigation privilege holding at
step two of its analysis may shed some light on how the court viewed the
issue of communicative conduct under section 425.16, subdivision (e)(1) and
(2). It is often said that the existence of anti-SLAPP protected activity and
the availability of the litigation privilege are related and the inquiry into one
informs the other. (Navellier v. Sletten (2003) 106 Cal.App.4th 763, 770.) In
the course of addressing whether Fannie Mae’s conduct was covered by the
litigation privilege, the Crossroads court had to deal with the threshold
requirement under Civil Code section 47, subdivision (b) that, for the
privilege to apply, the conduct claimed to be privileged must be
communicative. (Mancini & Associates v. Schwetz (2019) 39 Cal.App.5th 656,
661; see Kimmel v. Goland (1990) 51 Cal.3d 202, 211.) The court found that
Fannie Mae’s various omissions to speak were “in their essential nature,
communicative.” (Kupiec v. American Internat. Adjustment Co. (1991)
235 Cal.App.3d 1326, 1333.) And to illustrate the point, it cited authority for
the concept of fraud by half-truth. (See Crossroads, supra, 13 Cal.App.5th at
p. 786, citing Silberg v. Anderson (1990) 50 Cal.3d 205, 211, Kupiec v.
American Internat. Adjustment Co., supra, 235 Cal.App.3d at p. 1333, and
Forro Precision, Inc. v. International Business Machines Corp. (9th Cir. 1984) 745 F.2d 1283, 1285.)
5
10Page 14 makes no contention that it engaged in such conduct here. Whatever the
basis of the Crossroads holding on this point, we hold that, absent inherently
expressive silence, a refusal to speak is simply conduct, and under the section
425.16, subdivision (e) schema, conduct is most naturally covered by
subdivision (e)(4).
Apparently recognizing this, as a secondary line of argument Tesla
invokes section 425.16, subdivision (e)(4), the so-called “catchall” provision in
the statutory scheme. (See FilmOn.com Inc. v. DoubleVerify Inc. (2019) 7 Cal.5th 133, 148–152 (FilmOn).) Section 425.16, subdivision (e)(4),
expressly covers “conduct,” not just “written or oral statement[s] or
writing[s].” Applying that provision, the issue presented is whether Tesla’s
conduct in refusing to comply with BSL’s statutory records requests was “in
furtherance of the exercise of the constitutional right of petition or the
constitutional right of free speech in connection with a public issue or an
issue of public interest.” (§ 425.16, subd. (e)(4).) But Tesla fares no better
with section 425.16, subdivision (e)(4) than it does with subdivision (e)(2).
Under what has come to be known at the content-and-function test,
FilmOn supplies the applicable analysis. “The inquiry under the [section
425.16, subdivision (e)(4)] catchall provision,” the FilmOn court explained,
“calls for a two-part analysis rooted in the statute’s purpose and internal
logic. First, we ask what ‘public issue or . . . issue of public interest’ the
speech in question implicates—a question we answer by looking to the
content of the speech. (§ 425.16, subd. (e)(4).) Second, we ask what
functional relationship exists between the speech and the public conversation
about some matter of public interest. It is at the latter stage that context
proves useful.” (FilmOn, supra, 7 Cal.5th at pp. 149–150.)
Geiser, our Supreme Court’s latest word on section 425.16, subdivision
(e)(4), clarifies the test enunciated in FilmOn. (Geiser v. Kuhns (2022)
11Page 1513 Cal.5th 1238, 1248–1256 (Geiser).) The first step of the Geiser test “is
satisfied so long as the challenged speech or conduct, considered in light of its
context, may reasonably be understood to implicate a public issue, even if it
also implicates a private dispute. Only when an expressive activity, viewed
in context, cannot reasonably be understood as implicating a public issue
does an anti-SLAPP motion fail at FilmOn’s first step.” (Id. at pp. 1253–
1254.) While the proper application of the content-and-function test on this
record is close and somewhat novel, we think plaintiffs have the better side of
the argument.
The two contending positions on this issue are starkly different, not
surprisingly. According to plaintiffs, the discovery disputes in Vaughn
amount to nothing more than a private controversy featuring some routine
squabbling among lawyers, with the substantive allegations of race
discrimination in that case playing an incidental part in the background.
(See Doe v. Ledor (2023) 97 Cal.App.5th 731 [letter to college admissions
department sent by disgruntled friend of admitted student making
disparaging statements about admittee’s character did not contribute to any
public conversation about an issue of public interest].) Tesla, on the other
hand, relies on its own public prominence, points to a few statements from
BSL about how Tesla is a “half a trillion dollar company,” and emphasizes
how the injunctive relief in Vaughn “would inure to the benefit of not only
current Tesla employees, but to the benefit of their families and their
communities, as well as to the benefit of future Tesla applicants and
employees.” (See Vaughn v. Tesla, Inc., supra, 87 Cal.App.5th at p. 232
[relief sought in Vaughn qualifies as a public injunction and is therefore
exempt from arbitration].)
We do not wholly agree with either characterization. Plaintiffs’ effort
to characterize the dispute in this case as purely a private matter is strangely
12Page 16 divorced from the ongoing contest in Vaughn. We believe there is a public
issue in play here, though plaintiffs do their best to avoid the subject: It is
the core allegation in Vaughn that, for years, Tesla has been turning a blind
eye to racial harassment of African-American employees at its Fremont
plant. Tesla’s publicly reported narrative about these accusations is that, in
reality, the pattern of harassment alleged in Vaughn consists of isolated,
unintentional insensitivity by a few employees, and that complaints by any
offended workers should have been resolved by private reconciliation. 6
But Tesla’s effort to show that it meets the content-and-function test is
also unpersuasive. Its size and reputation, while a relevant factor, is
irrelevant in and of itself absent a demonstrated connection between its
petitioning activity and a public issue. The scope of the relief sought in
Vaughn fails to supply such a connection since it is tenuously related, at best,
to the parties’ quarrel over the production of employee files. As we read its
opening brief, the closest Tesla comes to identifying a section 425.16,
subdivision (e)(4) public issue is its narrow suggestion that the dispute over
production of employee files “highlights that the law is unsettled regarding a
party’s obligations” when faced with Labor Code information requests made
in parallel with ongoing discovery in a related action. But that is a stretch.
Interesting though this issue of discovery law may be to civil litigators and
judges, it is too parochial to qualify as an “issue of public interest” under
section 425.16, subdivision (e)(4).
The Chief Executive of Tesla, Elon Musk, reportedly wrote an email to
Tesla employees in May 2017 stating “[p]art of not being a huge jerk is
considering how someone might feel who is part of [a] historically less
represented group . . . Sometimes these things happen unintentionally, in
which case you should apologize. In fairness, if someone is a jerk to you, but
sincerely apologizes, it is important to be thick-skinned and accept that
apology.”
6
13Page 17 Ironically, in straining to identify a public issue, Tesla seems just as
allergic to the actual public controversy lurking in the background here as
the plaintiffs are. Despite the elephant in the room—the allegations of
racism leveled against it—we see nothing on this record to show how Tesla’s
act of refusing to produce the personnel files plaintiffs demanded under the
Labor Code could somehow constitute petitioning activity “contribut[ing]” to,
“further[ing],” or “participat[ing] in” debate on the public issue being
contested in Vaughn. (FilmOn, supra, 7 Cal.5th at pp. 151–154; Geiser,
supra, 13 Cal.5th at pp. 1246, 1255.) In the end, that is the critical hurdle
Tesla cannot overcome at step one of the anti-SLAPP analysis.
Tesla’s refusal respond to plaintiffs’ Labor Code requests for personnel
files does not qualify as petitioning activity protected by section 425.16,
subdivision (e)(4) simply because of the pendency of hotly contested litigation
on a public issue in a related case. The plaintiffs did not lose their rights to
demand information the Labor Code entitles them to receive simply because
BSL drew up a plaintiff class that includes them. (Wilder v. Superior Court
(1998) 66 Cal.App.4th 77 (Wilder) [plaintiff seeking to obtain investigation
information in support of claim against public agency entitled to pursue
statutory public records request independent of discovery process in litigation
of her claim].) BSL’s Labor Code requests sought wage statements,
attendance records, and an array of other quotidian information typically
found in employee files. Although some of the Labor Code requests sought
evidence relating to racial harassment complaints—which is no doubt why
the background allegations in the PAGA complaint reference these
complaints—the requests, in their full scope, sought a far broader universe of
information than did the harassment-focused discovery Tesla faced in
Vaughn.
14Page 18 Tesla never expressly ties its argument that plaintiffs’ Labor Code
personnel file requests were made “in Vaughn”—which is a running theme
throughout its briefs—to its claim of section 425.16, subdivision (e)(4)
protection. But we gather it places so much weight on the made “in Vaughn”
theme because it wants us to conclude that refusing to respond to plaintiffs’
statutory information requests was, as a practical matter, petitioning activity
undertaken in support of its defense of the Vaughn case. On this record,
based on the arguments Tesla made in the trial court, as reiterated here on
appeal, we see no basis to do so. The connection between Tesla’s refusal to
respond to plaintiffs’ statutory information requests and the public issue
being litigated in the Vaughn case is too attenuated to trigger section 425.16
subdivision (e)(4) protection under the second step of the FilmOn-Geiser test,
despite the subject matter overlap between those information requests and
the allegations in Vaughn.
No doubt because of that overlap, the Vaughn parties and the Vaughn
court appear to have tried to coordinate the pre-certification class discovery
process with the statutory information requests the plaintiffs were
simultaneously making under the Labor Code. But that does not mean these
information requests were made “in Vaughn.” “It may well have been the
case,” as the Wilder court stated, “that the documents . . . requested” by the
appellant there would be used “to ascertain whether grounds for . . . a claim
or lawsuit existed” (Wilder, supra, 66 Cal.App.4th at p. 83), but she was still
entitled to obtain the documents by independent statutory authority. The
same is true here. Regardless of their status as putative unnamed class
members, plaintiffs were entitled to seek whatever information the Labor
Code authorized them to seek, unconstrained by the strictures of the Vaughn
discovery process.
15Page 19 The trial court recognized this, correctly citing Wilder at one point to
indicate it had no authority to supervise plaintiffs’ Labor Code information
requests as part its management of pre-certification discovery in the Vaughn
proceedings. To the extent these information requests added to the discovery
burden on Tesla at that stage of the Vaughn case, Tesla’s obligation to
respond was nothing more than a byproduct of the legislative authorization
permitting every employee in the state to make demands for employment
information from current or former employers, subject only to the exemptions
written into the statutes authorizing such demands. None of these
exemptions applies here. 7
The only such exemption Tesla cited below, an exemption it relies on
here as well, provides that the right to inspect and receive copies of personnel
files pursuant to a Labor Code section 1198.5 request “ceases” during the
pendency of employment litigation filed by the requesting employee against
the employer. (Lab. Code, § 1198.5, subd. (n).) Tesla’s reliance on this
exemption rests on the premise that the Vaughn case is a lawsuit plaintiffs
filed against Tesla. That premise is incorrect. As absent class members, they
have no control over the Vaughn action, and never did—before or after it was
filed. As a general matter, “ ‘a nonnamed class member . . . “is [not] a party
to the class-action litigation before the class is certified” . . . . [Citation.]’ ”
(Bowser v. Ford Motor Co. (2022) 78 Cal.App.5th 587, 618, italics omitted; see
Smith v. Bayer Corp. (2011) 564 U.S. 299, 312–318.) Relying on an exception
to this general rule, Tesla argues that “unnamed class members are ‘parties’
for purposes of discovery” in pre-certification class actions. (National Solar
Equipment Owners’ Assn. v. Grumman Corp. (1991) 235 Cal.App.3d 1273,
1281–1282 (National Solar); see Southern California Edison Co. v. Superior
Court (1972) 7 Cal.3d 832, 840.) But the Edison/National Solar line of cases
addresses the availability of party discovery tools to defendants seeking to
compel information from unnamed class members. The rule these cases
enunciate—which permits circumscribed party discovery against absent class
members in some circumstances (see Danzig v. Superior Court (1978) 87
Cal.App.3d 604, 612)—sheds no light on the issue presented here. Certainly,
they do not stand for the broad proposition that absent class members may
always be treated as parties for all purposes.
7
16Page 20 The bottom line, as we see it, is this. Faced with many requests for
information that had nothing to do with the allegations in Vaughn, Tesla
made no effort to produce anything. This suggests it viewed the Vaughn case
as a convenient excuse to relieve itself of the burden of meeting statutory
obligations that were independent of its Vaughn defense. While the position
Tesla took in response to these requests incidentally closed the door to
plaintiffs’ ability to gather evidence supporting their allegations in Vaughn,
that did not transform the plaintiffs’ demands for personnel files under the
Labor Code—or Tesla’s response to those demands—into petitioning activity
“in Vaughn.”
Accordingly, because the PAGA case does not rest on any “written or
oral statement[s] or writing[s],” section 425.16, subdivision (e)(2) does not
apply and the Crossroads case—which was decided under subdivisions (e)(1)
and (e)(2)—is inapposite. Nor is there any merit to Tesla’s narrowly
articulated backup argument under section 425.16, subdivision (e)(4).
Because Tesla fails to identify anything in the PAGA case that implicates
speech or petitioning activity undertaken in connection with a public issue
under the FilmOn-Geiser test, section 425.16, subdivision (e)(4) does not
apply either. And in the absence of any protected conduct at step one of the
anti-SLAPP analysis, we need not address whether the PAGA case lacks
minimal merit. The merits of the PAGA case must be addressed in the usual
fashion, by dispositive motion or trial.
17Page 21 III.
The trial court’s order denying Tesla’s anti-SLAPP motion is affirmed.
Costs on appeal shall be awarded to respondents.
STREETER, J.
WE CONCUR:
BROWN, P. J.
HITE, J. *
Judge of the Superior Court of California, City and County of San
Francisco, assigned by the Chief Justice pursuant to article VI, section 6 of
the California Constitution.
*
18Page 22 Trial Court:
Superior Court of California, County of Alameda
Trial Judge:
Hon. Julia Spain
Counsel:
Reed Smith, Raymond A. Cardozo; Holland & Knight,
Christina T. Tellado for Defendant and Appellant.
Nichols Kaster, Matthew C. Helland and Jasjit Mundh;
California Civil Rights Law Group, Lawrence Organ;
Bryan Schwartz Law and Bryan Schwartz for Plaintiffs
and Respondents.
Taylor v. Tesla – A168333
PDF Page 1
PlainSite Cover Page
PDF Page 2
Filed 8/30/24 (unmodified opn. attached)
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FOUR
SHARONDA TAYLOR et al.,
Plaintiffs and Respondents,
A168333
v.
(Alameda County Super. Ct.
No. 23CV028922)
TESLA, INC.,
Defendant and Appellant.
ORDER MODIFYING OPINION;
NO CHANGE IN JUDGMENT
BY THE COURT: *
The court orders that the opinion filed in this appeal on August 8, 2024,
be modified as follows:
1. On page 7, in the last sentence of the paragraph that continues from
page 6, add quotation marks around the word “omissions,” so the
sentence reads:
Claiming to have been taken by surprise, Crossroads sued Fannie
Mae, seeking to rescind the sale on the ground that deceptive
statements and “omissions” by Fannie Mae in the bankruptcy
proceedings deprived it of its statutory redemption rights.
2. On page 10, in the first paragraph that begins “It seems clear,” delete
the third sentence that reads (retaining footnote five):
Brown, P. J., Streeter, J., Hite, J. (Judge of the Superior Court of
California, City and County of San Francisco, assigned by the Chief Justice
pursuant to article VI, section 6 of the California Constitution.)
*
1
PDF Page 3
We note that the “omissions” in Crossroads—information
withheld in discovery and a silently communicated rejection of
settlement overtures—necessarily expressed a message.
Insert in place of the deleted sentence indicated above, continuing
within the same paragraph, the following substitute language (ending
with footnote 5):
We do note that the “omissions” in Crossroads—apparently,
information withheld in discovery and a silently communicated
rejection of settlement overtures—necessarily expressed a
message pertinent to the tort causes of action at issue there.
3.
On page 17, In the second sentence of the first paragraph, delete the
language “made no effort to produce anything” and replace with the
language “produced virtually nothing” so the sentence reads:
Faced with many requests for information that had nothing to do
with the allegations in Vaughn, Tesla produced virtually nothing.
The modifications effect no change in the judgment.
Date: _________________________
___Brown________________P. J.
2
PDF Page 4
Trial Court:
Superior Court of California, County of Alameda
Trial Judge:
Hon. Julia Spain
Counsel:
Reed Smith, Raymond A. Cardozo; Holland & Knight and
Christina T. Tellado for Defendant and Appellant.
Nichols Kaster, Matthew C. Helland, Jasjit Mundh;
California Civil Rights Law Group, Lawrence Organ;
Bryan Schwartz Law and Bryan Schwartz for Plaintiffs
and Respondents.
3
PDF Page 5
Filed 8/8/24 (unmodified opinion)
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FOUR
SHARONDA TAYLOR et al.,
Plaintiffs and Respondents,
A168333
v.
(Alameda County Super. Ct.
No. 23CV028922)
TESLA, INC.,
Defendant and Appellant.
In this Private Attorneys General Act of 2004 (PAGA) (Lab. Code,
§ 2698 et seq.) action, Tesla Inc. (Tesla) appeals from the denial of a motion
under the anti-SLAPP statute (Code Civ. Proc., § 425.16). 1 Seeing no merit
to any of Tesla’s arguments, we affirm.
I.
Plaintiffs Sharonda Taylor, Shaka Green, Tatianna Smith and Zenobia
Milligan worked for Tesla for different periods between July 2015 through
March 2022. Through their counsel, Bryan Schwarz Law (BSL), they each
requested that Tesla provide them with certain personnel records pursuant to
the California Labor Code.
BSL serves as counsel for the plaintiffs in Vaughn v. Tesla, Alameda
County Superior Court No. RG17882082 (Vaughn), a class action filed
All undesignated statutory references are to the Code of Civil
Procedure.
1
1
PDF Page 6
against Tesla on November 13, 2017. As alleged, the Vaughn class consists of
“all African-Americans who were employed on the production floor at the
Tesla Factory at any time from November 9, 2016 to the final disposition of
[the Vaughn] action.” During the pendency of this appeal, a class
certification order issued in Vaughn. 2
Taylor, Green, Smith, and Milligan are members of the Vaughn class.
On behalf of the class, the Vaughn complaint alleges racial discrimination
and racial harassment claims against Tesla under the Fair Employment and
Housing Act. These allegations of race discrimination in Vaughn have been
closely watched and widely reported on by the press.
Prior to certification of the Vaughn class, considerable discovery
activity took place. This discovery activity included a series of motions to
compel and an associated motion for a protective order in the summer 2020.
The motions focused generally on BSL’s attempt to obtain witness contact
information, internal complaints and investigation materials pertaining to
incidents of racial harassment at Tesla.
In June 2020, the Vaughn court issued orders addressing the issues
raised in these discovery motions, including the manner in which privacy
notices to absent class members should be handled. 3 In its orders, the
Vaughn court suggested “by way of observation” that the parties “might
consider” including “an opt-in privacy waiver for review of complaint and
personnel files.” This suggestion was designed to confine the universe of
On our own motion, we take judicial notice of the May 17, 2024 class
certification order in Vaughn. (Evid. Code, § 452, subds. (c)–(d).)
2
See Belaire-West Landscape, Inc. v. Superior Court (2007)
149 Cal.App.4th 554, 561 (approving privacy waiver opt-in procedure in precertification class discovery where defendant employer was being required to
provide confidential personnel information about absent class members).
3
2
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“files to be reviewed” to those who signed privacy waivers, thus limiting the
pre-certification discovery burden on Tesla.
A few months later, the Vaughn court ordered Tesla to produce
complaints pertaining to incidents of racial harassment (including
investigation and resulting discipline), but only for those complaining
workers who signed a privacy waiver. In accordance with this order, from
October to November 2020, BSL sent Tesla privacy waivers in five batches,
after which Tesla was to produce the waivants’ race harassment complaints.
Beginning in October 2020, on behalf of hundreds of Tesla employees
for whom privacy waivers were provided, BSL sent Tesla a series of statutory
personnel records requests under Labor Code sections 226, 432, and 1198.5.
The requestors included Milligan, Taylor, Green and Smith. BSL
resubmitted the personnel records requests for Taylor and Milligan in early
2021, apparently after Tesla questioned whether the digital signatures on the
privacy waivers accompanying the first set of requests for these two
individuals were adequate.
Later in 2021, other procedural events in Vaughn impacted the
timetable for Tesla’s compliance with these discovery and Labor Code records
requests. In September 2021, the Vaughn court granted in part and denied
in part Tesla’s motion to compel arbitration of the claims brought by two
Vaughn plaintiffs, and Tesla appealed. The court then stayed all trial court
proceedings in Vaughn until the appeal was resolved.
In February 2022, Tesla’s counsel wrote to BSL and took the position
that the Vaughn stay suspended any obligation to respond to the pending
Labor Code records requests. In line with that position, Tesla produced
nothing in response to these requests. Having received no responses to its
information requests under the Labor Code, on April 19, 2022, BSL sent a
3
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letter to the California Labor and Workforce Development Agency (LWDA) on
behalf of Taylor, Green, Smith, and Milligan alleging PAGA violations.
In its letter to LWDA, BSL argued that “internal complaints made by
an employee and evidence of an ensuing non-attorney investigation are
included within the definition of personnel files.” It also argued that Tesla
had “repeatedly provided deficient personnel files in violation of Labor Code
§ 1198.5” by not “includ[ing] any record of internal complaints that were
made by the requesting employee or former employee or any resulting
investigation.” BSL further asserted that Tesla’s productions of personnel
records were deficient because Tesla “routinely omitted requestors’ job
applications and any of the documents that the requestor signed at the start
of employment” and had produced some documents, such as “performance
reviews . . . in unintelligible formats, such as tables that are split across
dozens of pages with no indication of their actual organization.”
In January 2023, Division Five of this court affirmed the Vaughn
court’s partial denial of Tesla’s motion to compel arbitration. (Vaughn v.
Tesla, Inc. (2023) 87 Cal.App.5th 208.) Following the issuance of the
remittitur in that appeal, the stay on proceedings in Vaughn was lifted. The
allegations of Labor Code violations in BSL’s notice letter to the LWDA
remained live, however, since by then Tesla had been delinquent in
responding to the statutory records requests for the better part of a year.
This PAGA action followed. On March 7, 2023, represented by BSL,
plaintiffs filed their PAGA complaint seeking penalties for Tesla’s failure to
respond to Labor Code personnel records requests. The complaint alleges a
single cause of action alleging as predicate violations Tesla’s refusal to
comply with Labor Code sections 1198.5, 226, and 432. Tesla answered and
filed a special motion to strike pursuant to the anti-SLAPP statute.
4
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The trial court denied Tesla’s anti-SLAPP motion on July 7, 2023. The
court found that “Tesla did not meet its initial burden as the movant to make
a ‘threshold showing that [Plaintiffs’] claims arise from petitioning activity
within the purview of the anti-SLAPP statute.’ ” “On this record,” the court
ruled, “Plaintiffs were merely exercising their statutory rights under the
Labor Code to inspect and copy wage statements, signed instruments, and
personnel files, independent of anything happening in Vaughn.”
Now before us is Tesla’s appeal from the denial of its anti-SLAPP
motion in the PAGA case.
II.
We assume familiarity with the two-step framework of analysis under
the anti-SLAPP statute. (See, e.g., Wilson v. Cable News Network, Inc. (2019)
7 Cal.5th 871, 884–885; Area 51 Productions, Inc. v. City of Alameda (2018)
20 Cal.App.5th 581, 593–594; id. at pp. 594–601 [first prong], 602–604
[second prong].) Our review is de novo at both steps. (Area 51 Productions,
at pp. 593–594.)
A.
In support of its contention that denial of its anti-SLAPP motion was
erroneous, Tesla relies heavily on Crossroads Investors, L.P. v. Federal
National Mortgage Assn. (2017) 13 Cal.App.5th 757 (Crossroads). That case
involved a lawsuit filed and pursued by a real estate investment partnership
(Crossroads) against the Federal National Mortgage Association (Fannie
Mae) in connection with a chapter 11 bankruptcy proceeding. (Id. at p. 769.)
Because of the centrality of Crossroads to Tesla’s argument, we begin with an
overview of the case. The appellate opinion there is somewhat complex, and
to apply its holding properly, some nuances must be kept in mind.
Crossroads, the owner of an apartment building, was the debtor on a
mortgage loan that fell into default at the height of the mortgage foreclosure
5
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crisis in 2011. (Crossroads, supra, 13 Cal.App.5th at p. 766.) On the day
before a scheduled foreclosure sale, Crossroads filed for bankruptcy. (Id. at
p. 767.) Fannie Mae was the mortgage holder and a creditor in the
bankruptcy. Many of the alleged acts by Fannie Mae took place in the course
of the bankruptcy proceedings while an automatic stay was in place (id. at
pp. 767–771), but at its core the seven-count complaint Crossroads filed after
the bankruptcy was over bore the hallmarks of a wrongful foreclosure claim.
(See Miles v. Deutsche Bank National Trust Co. (2015) 236 Cal.App.4th 394,
407–410.)
Despite having sent the required written notice of default informing
Crossroads it could reinstate the delinquent mortgage loan by tendering the
overdue amount no later than five business days before the foreclosure sale
(Crossroads, supra, 13 Cal.App.5th at p. 766), and despite having orally
promised in settlement discussions that, after the automatic bankruptcy stay
was lifted, it would give advance notice before proceeding with a foreclosure
sale (id. at pp. 770–771), Fannie Mae allegedly sold the mortgaged property
at a foreclosure auction immediately after the stay was lifted, without giving
the promised notice and without providing an accounting of exactly how
much was owed on the delinquent loan (id. at p. 771).
Crossroads had unsuccessfully argued in bankruptcy court as part of its
proposed plan of reorganization (which ultimately the bankruptcy court
rejected) that it should not have to pay a prepayment penalty in order to
redeem its mortgage loan, and it made a settlement proposal conditioned on
Fannie Mae waiving that penalty. (Crossroads, supra, 13 Cal.App.5th at
pp. 768–769.) In an interrogatory response in the bankruptcy proceeding,
Fannie Mae declined to provide the exact amount of the mortgage loan
delinquency. (Id. at p. 769.) And in the settlement discussions, Fannie Mae
refused to accept any tender of delinquent proceeds without the prepayment
6
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penalty. (Id. at pp. 770–771.) After the stay was lifted, Fannie Mae
proceeded with a foreclosure sale to a willing buyer. (Id. at p. 771.) Claiming
to have been taken by surprise, Crossroads sued Fannie Mae, seeking to
rescind the sale on the ground that deceptive statements and omissions by
Fannie Mae in the bankruptcy proceedings deprived it of its statutory
redemption rights. (Id. at pp. 771–772.)
Against this backdrop, the trial court denied Fannie Mae’s anti-SLAPP
motion to strike the entire complaint. (Crossroads, supra, 13 Cal.App.5th at
p. 772.) A Third District Court of Appeal panel reversed. (Id. at pp. 793–
794.) 4 At the initial step of the anti-SLAPP analysis, the Crossroads panel
concluded that the first six causes of action in the state court case—which it
broadly termed the “tort causes of action”—were based on anti-SLAPP
protected activity. (Crossroads, at p. 777–785.) Relying on section 425.16,
subdivisions (e)(1) and (e)(2), the panel viewed the basis of these claims as
protected “because (1) [Fannie Mae’s] response to the interrogatory was a
‘writing made’ in the bankruptcy action, and (2) its omissions were ‘made in
connection with an issue under consideration or review by’ the bankruptcy
court.” (Id. at p. 778.)
At the second step of the anti-SLAPP analysis, the panel went on to
find the litigation privilege applicable to all of Crossroads’s tort theories.
(Crossroads, supra, 13 Cal.App.5th at pp. 785–787, citing Seltzer v. Barnes
(2010) 182 Cal.App.4th 953.) “[B]y concluding the anti-SLAPP statute
applies because Crossroads’ claims arose from the response to an
In a prior opinion, the panel affirmed. The California Supreme Court
granted review, depublished the prior opinion, and transferred the case back
to Court of Appeal for reconsideration in light of Baral v. Schnitt (2016)
1 Cal.5th 376. (Crossroads, supra, 13 Cal.App.5th at pp. 765–766.)
4
7
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interrogatory and from statements and omissions made in settlement
discussions in the bankruptcy action and concerning issues under review in
the bankruptcy action, we readily find those statements and omissions have
‘some relation’ to the bankruptcy action and thus are privileged under section
47,” the court held. (Crossroads, at p. 787.) On that basis, it directed that all
of the tort claims be stricken for lack of minimal merit. (Id. at pp. 785–787.)
While the litigation privilege did not apply to the breach of contract
claim (Crossroads, supra, 13 Cal.App.5th at p. 787)—that claim involved the
same conduct alleged in the tort claims, but without any additional element
of deceit—the court concluded that most of Crossroads’ contract theories
lacked minimal merit because it failed to show proof of damages or evidence
that it had submitted valid tenders to Fannie Mae. (Id. at pp. 789–793.) One
sliver of Crossroads’ breach of contract claim survived (alleged breach of an
oral agreement to give notice of the foreclosure sale). (Id. at p. 788.) Except
for this one surviving theory of breach, the contract claim too was ordered
stricken. (Id. at pp. 793–794.)
B.
All of the tort claims in Crossroads, as we have noted, were based on
statements or information withheld by Fannie Mae in the course of discovery
or settlement negotiations in a bankruptcy proceeding. Framing their
arguments around Tesla’s contention that Crossroads controls here, the
parties to this appeal devote a great deal of attention to whether BSL’s
statutory personnel records requests were made “in Vaughn.” Plaintiffs
suggest that the class discovery process in Vaughn and the statutory
personnel records request process for individual Tesla employees proceeded
in parallel, but independently. Tesla, on the other hand, argues that the
class discovery process and the statutory records requests proceeded in a
coordinated way, with the Vaughn court overseeing, issuing orders, and
8
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giving guidance relating to both. In our view, this debate over whether BSL’s
statutory records requests were made “in Vaughn” is not particularly
germane to Tesla’s primary step one argument.
Under section 425.16, subdivision (e)(2), Tesla contends, “ ‘A statement
is “in connection with” an issue under consideration by a court in a judicial
proceeding . . . if it relates to a substantive issue in the proceeding and is
directed to a person having some interest in the proceeding.’ ” (Crossroads,
supra, 13 Cal.App.5th at p. 779, original italics.) But Tesla overlooks a
crucial threshold issue. Subdivisions (e)(1) through (e)(3) of section 425.16 all
require a “written or oral statement or writing.” Unlike the scenario in
Crossroads, this case involves no protected activity covered by section 425.16,
subdivision (e)(2) because no “written or oral statement or writing” by Tesla
is an “element” of the PAGA claim at issue here. (Park v. Board of Trustees of
California State University (2017) 2 Cal.5th 1057, 1063.)
At most, to the extent any communication or other expressive activity
by Tesla is relevant, it is a matter of “incidental background.” (Bonni v. St.
Joseph Health System (2021) 11 Cal.5th 995, 1012; see Park, at p. 1064
[drawing “distinction between activities that form the basis for a claim and
those that merely lead to the liability-creating activity or provide evidentiary
support for the claim”].) At trial, plaintiffs may establish predicate violations
of Labor Code sections 226, 432, and 1198.5 in support of their PAGA claim
without offering any writing or any oral statements by Tesla. They need only
prove that they sent statutory demands for personnel files and never received
any files in response. It is certainly conceivable that, for context, some party
to the PAGA action might wish to offer, say, Vaughn discovery meet-andconfer correspondence or pleadings or orders from Vaughn—either in support
of the PAGA claim or by way of defense to it—but if such evidence were
9
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offered, it would be relevant only as a collateral matter for background
purposes.
It seems clear, to be sure, why Tesla places so much weight on
Crossroads: The case finds “omissions” as well as affirmative statements to
be protected under section 425.16, subdivision (e). But in so holding, the
Crossroads court does not explain why the “omissions” at issue there were
treated as “written or oral statement[s] or writing[s]” within the meaning of
section 425.16, subdivision (e)(1) and (2). We note that the “omissions” in
Crossroads—information withheld in discovery and a silently communicated
rejection of settlement overtures—necessarily expressed a message. 5 In
circumstances where a refusal to speak is inherently expressive, the reading
of the statutory text adopted in Crossroads might be justified. But Tesla
While this aspect of the step one anti-SLAPP analysis in the
Crossroads opinion is somewhat opaque, the litigation privilege holding at
step two of its analysis may shed some light on how the court viewed the
issue of communicative conduct under section 425.16, subdivision (e)(1) and
(2). It is often said that the existence of anti-SLAPP protected activity and
the availability of the litigation privilege are related and the inquiry into one
informs the other. (Navellier v. Sletten (2003) 106 Cal.App.4th 763, 770.) In
the course of addressing whether Fannie Mae’s conduct was covered by the
litigation privilege, the Crossroads court had to deal with the threshold
requirement under Civil Code section 47, subdivision (b) that, for the
privilege to apply, the conduct claimed to be privileged must be
communicative. (Mancini & Associates v. Schwetz (2019) 39 Cal.App.5th 656,
661; see Kimmel v. Goland (1990) 51 Cal.3d 202, 211.) The court found that
Fannie Mae’s various omissions to speak were “in their essential nature,
communicative.” (Kupiec v. American Internat. Adjustment Co. (1991)
235 Cal.App.3d 1326, 1333.) And to illustrate the point, it cited authority for
the concept of fraud by half-truth. (See Crossroads, supra, 13 Cal.App.5th at
p. 786, citing Silberg v. Anderson (1990) 50 Cal.3d 205, 211, Kupiec v.
American Internat. Adjustment Co., supra, 235 Cal.App.3d at p. 1333, and
Forro Precision, Inc. v. International Business Machines Corp. (9th Cir. 1984)
745 F.2d 1283, 1285.)
5
10
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makes no contention that it engaged in such conduct here. Whatever the
basis of the Crossroads holding on this point, we hold that, absent inherently
expressive silence, a refusal to speak is simply conduct, and under the section
425.16, subdivision (e) schema, conduct is most naturally covered by
subdivision (e)(4).
Apparently recognizing this, as a secondary line of argument Tesla
invokes section 425.16, subdivision (e)(4), the so-called “catchall” provision in
the statutory scheme. (See FilmOn.com Inc. v. DoubleVerify Inc. (2019)
7 Cal.5th 133, 148–152 (FilmOn).) Section 425.16, subdivision (e)(4),
expressly covers “conduct,” not just “written or oral statement[s] or
writing[s].” Applying that provision, the issue presented is whether Tesla’s
conduct in refusing to comply with BSL’s statutory records requests was “in
furtherance of the exercise of the constitutional right of petition or the
constitutional right of free speech in connection with a public issue or an
issue of public interest.” (§ 425.16, subd. (e)(4).) But Tesla fares no better
with section 425.16, subdivision (e)(4) than it does with subdivision (e)(2).
Under what has come to be known at the content-and-function test,
FilmOn supplies the applicable analysis. “The inquiry under the [section
425.16, subdivision (e)(4)] catchall provision,” the FilmOn court explained,
“calls for a two-part analysis rooted in the statute’s purpose and internal
logic. First, we ask what ‘public issue or . . . issue of public interest’ the
speech in question implicates—a question we answer by looking to the
content of the speech. (§ 425.16, subd. (e)(4).) Second, we ask what
functional relationship exists between the speech and the public conversation
about some matter of public interest. It is at the latter stage that context
proves useful.” (FilmOn, supra, 7 Cal.5th at pp. 149–150.)
Geiser, our Supreme Court’s latest word on section 425.16, subdivision
(e)(4), clarifies the test enunciated in FilmOn. (Geiser v. Kuhns (2022)
11
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13 Cal.5th 1238, 1248–1256 (Geiser).) The first step of the Geiser test “is
satisfied so long as the challenged speech or conduct, considered in light of its
context, may reasonably be understood to implicate a public issue, even if it
also implicates a private dispute. Only when an expressive activity, viewed
in context, cannot reasonably be understood as implicating a public issue
does an anti-SLAPP motion fail at FilmOn’s first step.” (Id. at pp. 1253–
1254.) While the proper application of the content-and-function test on this
record is close and somewhat novel, we think plaintiffs have the better side of
the argument.
The two contending positions on this issue are starkly different, not
surprisingly. According to plaintiffs, the discovery disputes in Vaughn
amount to nothing more than a private controversy featuring some routine
squabbling among lawyers, with the substantive allegations of race
discrimination in that case playing an incidental part in the background.
(See Doe v. Ledor (2023) 97 Cal.App.5th 731 [letter to college admissions
department sent by disgruntled friend of admitted student making
disparaging statements about admittee’s character did not contribute to any
public conversation about an issue of public interest].) Tesla, on the other
hand, relies on its own public prominence, points to a few statements from
BSL about how Tesla is a “half a trillion dollar company,” and emphasizes
how the injunctive relief in Vaughn “would inure to the benefit of not only
current Tesla employees, but to the benefit of their families and their
communities, as well as to the benefit of future Tesla applicants and
employees.” (See Vaughn v. Tesla, Inc., supra, 87 Cal.App.5th at p. 232
[relief sought in Vaughn qualifies as a public injunction and is therefore
exempt from arbitration].)
We do not wholly agree with either characterization. Plaintiffs’ effort
to characterize the dispute in this case as purely a private matter is strangely
12
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divorced from the ongoing contest in Vaughn. We believe there is a public
issue in play here, though plaintiffs do their best to avoid the subject: It is
the core allegation in Vaughn that, for years, Tesla has been turning a blind
eye to racial harassment of African-American employees at its Fremont
plant. Tesla’s publicly reported narrative about these accusations is that, in
reality, the pattern of harassment alleged in Vaughn consists of isolated,
unintentional insensitivity by a few employees, and that complaints by any
offended workers should have been resolved by private reconciliation. 6
But Tesla’s effort to show that it meets the content-and-function test is
also unpersuasive. Its size and reputation, while a relevant factor, is
irrelevant in and of itself absent a demonstrated connection between its
petitioning activity and a public issue. The scope of the relief sought in
Vaughn fails to supply such a connection since it is tenuously related, at best,
to the parties’ quarrel over the production of employee files. As we read its
opening brief, the closest Tesla comes to identifying a section 425.16,
subdivision (e)(4) public issue is its narrow suggestion that the dispute over
production of employee files “highlights that the law is unsettled regarding a
party’s obligations” when faced with Labor Code information requests made
in parallel with ongoing discovery in a related action. But that is a stretch.
Interesting though this issue of discovery law may be to civil litigators and
judges, it is too parochial to qualify as an “issue of public interest” under
section 425.16, subdivision (e)(4).
The Chief Executive of Tesla, Elon Musk, reportedly wrote an email to
Tesla employees in May 2017 stating “[p]art of not being a huge jerk is
considering how someone might feel who is part of [a] historically less
represented group . . . Sometimes these things happen unintentionally, in
which case you should apologize. In fairness, if someone is a jerk to you, but
sincerely apologizes, it is important to be thick-skinned and accept that
apology.”
6
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Ironically, in straining to identify a public issue, Tesla seems just as
allergic to the actual public controversy lurking in the background here as
the plaintiffs are. Despite the elephant in the room—the allegations of
racism leveled against it—we see nothing on this record to show how Tesla’s
act of refusing to produce the personnel files plaintiffs demanded under the
Labor Code could somehow constitute petitioning activity “contribut[ing]” to,
“further[ing],” or “participat[ing] in” debate on the public issue being
contested in Vaughn. (FilmOn, supra, 7 Cal.5th at pp. 151–154; Geiser,
supra, 13 Cal.5th at pp. 1246, 1255.) In the end, that is the critical hurdle
Tesla cannot overcome at step one of the anti-SLAPP analysis.
Tesla’s refusal respond to plaintiffs’ Labor Code requests for personnel
files does not qualify as petitioning activity protected by section 425.16,
subdivision (e)(4) simply because of the pendency of hotly contested litigation
on a public issue in a related case. The plaintiffs did not lose their rights to
demand information the Labor Code entitles them to receive simply because
BSL drew up a plaintiff class that includes them. (Wilder v. Superior Court
(1998) 66 Cal.App.4th 77 (Wilder) [plaintiff seeking to obtain investigation
information in support of claim against public agency entitled to pursue
statutory public records request independent of discovery process in litigation
of her claim].) BSL’s Labor Code requests sought wage statements,
attendance records, and an array of other quotidian information typically
found in employee files. Although some of the Labor Code requests sought
evidence relating to racial harassment complaints—which is no doubt why
the background allegations in the PAGA complaint reference these
complaints—the requests, in their full scope, sought a far broader universe of
information than did the harassment-focused discovery Tesla faced in
Vaughn.
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Tesla never expressly ties its argument that plaintiffs’ Labor Code
personnel file requests were made “in Vaughn”—which is a running theme
throughout its briefs—to its claim of section 425.16, subdivision (e)(4)
protection. But we gather it places so much weight on the made “in Vaughn”
theme because it wants us to conclude that refusing to respond to plaintiffs’
statutory information requests was, as a practical matter, petitioning activity
undertaken in support of its defense of the Vaughn case. On this record,
based on the arguments Tesla made in the trial court, as reiterated here on
appeal, we see no basis to do so. The connection between Tesla’s refusal to
respond to plaintiffs’ statutory information requests and the public issue
being litigated in the Vaughn case is too attenuated to trigger section 425.16
subdivision (e)(4) protection under the second step of the FilmOn-Geiser test,
despite the subject matter overlap between those information requests and
the allegations in Vaughn.
No doubt because of that overlap, the Vaughn parties and the Vaughn
court appear to have tried to coordinate the pre-certification class discovery
process with the statutory information requests the plaintiffs were
simultaneously making under the Labor Code. But that does not mean these
information requests were made “in Vaughn.” “It may well have been the
case,” as the Wilder court stated, “that the documents . . . requested” by the
appellant there would be used “to ascertain whether grounds for . . . a claim
or lawsuit existed” (Wilder, supra, 66 Cal.App.4th at p. 83), but she was still
entitled to obtain the documents by independent statutory authority. The
same is true here. Regardless of their status as putative unnamed class
members, plaintiffs were entitled to seek whatever information the Labor
Code authorized them to seek, unconstrained by the strictures of the Vaughn
discovery process.
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The trial court recognized this, correctly citing Wilder at one point to
indicate it had no authority to supervise plaintiffs’ Labor Code information
requests as part its management of pre-certification discovery in the Vaughn
proceedings. To the extent these information requests added to the discovery
burden on Tesla at that stage of the Vaughn case, Tesla’s obligation to
respond was nothing more than a byproduct of the legislative authorization
permitting every employee in the state to make demands for employment
information from current or former employers, subject only to the exemptions
written into the statutes authorizing such demands. None of these
exemptions applies here. 7
The only such exemption Tesla cited below, an exemption it relies on
here as well, provides that the right to inspect and receive copies of personnel
files pursuant to a Labor Code section 1198.5 request “ceases” during the
pendency of employment litigation filed by the requesting employee against
the employer. (Lab. Code, § 1198.5, subd. (n).) Tesla’s reliance on this
exemption rests on the premise that the Vaughn case is a lawsuit plaintiffs
filed against Tesla. That premise is incorrect. As absent class members, they
have no control over the Vaughn action, and never did—before or after it was
filed. As a general matter, “ ‘a nonnamed class member . . . “is [not] a party
to the class-action litigation before the class is certified” . . . . [Citation.]’ ”
(Bowser v. Ford Motor Co. (2022) 78 Cal.App.5th 587, 618, italics omitted; see
Smith v. Bayer Corp. (2011) 564 U.S. 299, 312–318.) Relying on an exception
to this general rule, Tesla argues that “unnamed class members are ‘parties’
for purposes of discovery” in pre-certification class actions. (National Solar
Equipment Owners’ Assn. v. Grumman Corp. (1991) 235 Cal.App.3d 1273,
1281–1282 (National Solar); see Southern California Edison Co. v. Superior
Court (1972) 7 Cal.3d 832, 840.) But the Edison/National Solar line of cases
addresses the availability of party discovery tools to defendants seeking to
compel information from unnamed class members. The rule these cases
enunciate—which permits circumscribed party discovery against absent class
members in some circumstances (see Danzig v. Superior Court (1978) 87
Cal.App.3d 604, 612)—sheds no light on the issue presented here. Certainly,
they do not stand for the broad proposition that absent class members may
always be treated as parties for all purposes.
7
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The bottom line, as we see it, is this. Faced with many requests for
information that had nothing to do with the allegations in Vaughn, Tesla
made no effort to produce anything. This suggests it viewed the Vaughn case
as a convenient excuse to relieve itself of the burden of meeting statutory
obligations that were independent of its Vaughn defense. While the position
Tesla took in response to these requests incidentally closed the door to
plaintiffs’ ability to gather evidence supporting their allegations in Vaughn,
that did not transform the plaintiffs’ demands for personnel files under the
Labor Code—or Tesla’s response to those demands—into petitioning activity
“in Vaughn.”
Accordingly, because the PAGA case does not rest on any “written or
oral statement[s] or writing[s],” section 425.16, subdivision (e)(2) does not
apply and the Crossroads case—which was decided under subdivisions (e)(1)
and (e)(2)—is inapposite. Nor is there any merit to Tesla’s narrowly
articulated backup argument under section 425.16, subdivision (e)(4).
Because Tesla fails to identify anything in the PAGA case that implicates
speech or petitioning activity undertaken in connection with a public issue
under the FilmOn-Geiser test, section 425.16, subdivision (e)(4) does not
apply either. And in the absence of any protected conduct at step one of the
anti-SLAPP analysis, we need not address whether the PAGA case lacks
minimal merit. The merits of the PAGA case must be addressed in the usual
fashion, by dispositive motion or trial.
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III.
The trial court’s order denying Tesla’s anti-SLAPP motion is affirmed.
Costs on appeal shall be awarded to respondents.
STREETER, J.
WE CONCUR:
BROWN, P. J.
HITE, J. *
Judge of the Superior Court of California, City and County of San
Francisco, assigned by the Chief Justice pursuant to article VI, section 6 of
the California Constitution.
*
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Trial Court:
Superior Court of California, County of Alameda
Trial Judge:
Hon. Julia Spain
Counsel:
Reed Smith, Raymond A. Cardozo; Holland & Knight,
Christina T. Tellado for Defendant and Appellant.
Nichols Kaster, Matthew C. Helland and Jasjit Mundh;
California Civil Rights Law Group, Lawrence Organ;
Bryan Schwartz Law and Bryan Schwartz for Plaintiffs
and Respondents.
Taylor v. Tesla – A168333
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