Page 1 No. AIN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT, DIVISION ONE
RANDEEP HOTHI,
Plaintiff-Respondent,
v.
ELON MUSK
On Appeal from the Superior Court for the County of Alameda
Hon. Julia Spain, Judge,
Case No. RGAPPELLANT’S OPENING BRIEF
ALEX SPIRO
(pro hac vice admission
pending)
QUINN EMANUEL URQUHART
& SULLIVAN, LLP
51 Madison Avenue, 22nd Floor
New York, NY Telephone: (212) 849-Facsimile: (212) 849-alexspiro@quinnemanuel.com
MICHAEL T. LIFRAK
(S.B. No. 210846)
JEANINE ZALDUENDO
(S.B. No. 243374)
QUINN EMANUEL URQUHART
& SULLIVAN, LLP
865 S. Figueroa Street, 10th Fl.
Los Angeles, CA Telephone: (213) 443-Facsimile: (212) 443-michaellifrak@quinnemanuel.com
Counsel for Defendant-Appellant Elon Musk
Document received by the CA 1st District Court of Appeal.
Defendant-Appellant.Page 2 CERTIFICATE OF INTERESTED ENTITIES OR PERSONS
Pursuant to California Rules of Court, rule 8.208, CrossDefendant and Appellant Elon Musk hereby submits the following
certificate of interested entities or persons:
1.
Elon Musk knows of no other entity or person that has a
financial or other interest in the outcome of the proceeding that they
reasonably believe the Justices should consider in determining
8.208(e)(2).
Dated: June 10,
Alex Spiro
Michael T. Lifrak
Document received by the CA 1st District Court of Appeal.
whether to disqualify them under California Rules of Court, rulePage 3 TABLE OF CONTENTS
Page
INTRODUCTION ....................................................................................... STATEMENT OF FACTS ........................................................................ A.
Hothi’s Rise to Prominence as a Tesla Critic. .................
B.
Hothi’s Harassment of Tesla. ............................................
C.
Hothi’s Sideswipes a Tesla Employee. ............................
D.
Tesla’s Restraining Order Proceedings Against
Hothi. ....................................................................................
E.
Musk’s Emails to Greenspan. ...........................................
F.
Hothi’s Lawsuit and Musk’s Motion to Strike. ..............
STANDARD OF REVIEW ....................................................................... ARGUMENT ............................................................................................. I.
THE ANTI-SLAPP STATUTE APPLIES TO HOTHI’S
CLAIM FOR DEFAMATION AGAINST MUSK. ..................... A.
The Anti-SLAPP Statute Applies to Any Act in
Furtherance of a Person’s Exercise of Free Speech
on a Public Issue. ................................................................
B.
Hothi’s Claims Arise from Musk’s Speech on
Several Issues of Public Interest. ......................................
C.
1.
The Actions of Tesla, Musk, and the
$TSLAQ Group Are Matters of Public
Interest. .....................................................................
2.
Musk’s Statements Related Directly to the
Issues of Public Interest. .........................................
Hothi’s Claim Also Arises from Musk’s Speech
About Issues that Were Pending Before The
Court. ....................................................................................
Document received by the CA 1st District Court of Appeal.
STATEMENT OF APPEALABILITY ..................................................... 24Page 4 2.
The Challenged Statements Related to the
Ongoing Injunction Proceeding. ...........................
3.
The Challenged Statements Related to
Hothi’s Threatened Case Against Musk. .............
HOTHI DID NOT DEMONSTRATE A PROBABILITY
OF PREVAILING........................................................................... A.
B.
C.
III.
The Anti-SLAPP Statute Protects Speech
About Pending or Threatened Cases....................
Hothi Did Not Establish Falsity. ...................................... 1.
The Applicable Law Concerning Falsity. ............
2.
The Challenged Statements Were True. ..............
Hothi Did Not Establish That Musk’s Statements
Were Made with Malice. ................................................... 1.
The Constitutional Framework for Limited
Public Figure Plaintiffs. ..........................................
2.
Because Hothi Is a Limited Purpose Public
Figure, the Actual Malice Standard Applies
Here. ..........................................................................
Hothi Did Not Establish that Musk Acted with
Malice. .................................................................................. 1.
Hothi Did Not Present Any Evidence
Contradicting
Musk’s
Prima
Facie
Showing. ...................................................................
2.
The Court Erred in Finding Malice Based
Solely on Musk’s Alleged Dislike of Hothi. ........
MUSK IS ENTITLED TO HIS ATTORNEYS’ FEES. ................
CONCLUSION .........................................................................................
Document received by the CA 1st District Court of Appeal.
II.
1.Page 5 TABLE OF AUTHORITIES
Page
CASES
Ampex Corp. v. Cargle
(2005) 128 Cal.App.4th 1569 ....................................... 30, 32, 33, Annette F. v. Sharon S.
(2004) 119 Cal.App.4th 1146 ........................... 38, 40, 53, 56, 63, Argentieri v. Zuckerberg
(2017) 8 Cal.App.5th 768 ............................................................... Briggs v. Eden Council for Hope & Opportunity
(1999) 19 Cal.4th 1106 ....................................................................
Cabrera v. Alam
(2011) 197 Cal.App.4th 1077 ......................................................... Cal. Pub. Emp. Ret. System v. Moody’s Inv’rs Serv., Inc.
(2014) 226 Cal.App.4th 643 ........................................................... Canaday v. Peoples-Perry
(N.D. Cal. Dec. 15, 2017) 2017 WL 6405618................................ Carver v. Bonds
(2005) 135 Cal.App.4th 328 ........................................................... Christian Research Inst. v. Alnor
(2007) 148 Cal.App.4th 71 ....................................................... 62, City of Alhambra v. D’Ausilio
(2011) 193 Cal.App.4th 1301 ......................................................... Conroy v. Spitzer
(1999) 70 Cal.App.4th 1446 ........................................................... Copp v. Paxton
(1996) 45 Cal.App.4th 829 ............................... 35, 55, 57, 58, 59, Dove Audio, Inc. v. Rosenfeld, Meyer & Susman
(1996) 47 Cal.App.4th 777 ............................................................. Dyer v. Childress
(2007) 147 Cal.App.4th 1273 .........................................................
Document received by the CA 1st District Court of Appeal.
Cabral v. Martins
(2009) 177 Cal.App.4th 471 ........................................................... 2Page 6 Edwards v. Hall
(1991) 234 Cal.App.3d 886 ............................................................ FilmOn.com Inc. v. DoubleVerify Inc.
(2019) 7 Cal.5th 133 ................................................ 29, 33, 34, 35, Gertz v. Robert Welch, Inc.
(1974) 418 U.S. 323 ......................................................................... GetFugu, Inc. v. Patton Boggs LLP
(2013) 220 Cal.App.4th 141 ........................................................... Gilbert v. Sykes
(2007) 147 Cal.App.4th 13 ............................... 33, 43, 44, 48, 52, Gotterba v. Travolta
(2014) 228 Cal.App.4th 35 ............................................................. Haight Ashbury Free Clinics, Inc. v. Happening House Ventures
(2010) 184 Cal.App.4th 1539 .........................................................
Hall v. Time Warner, Inc.
(2007) 153 Cal.App.4th 1337 ......................................................... Herring Networks, Inc. v. Maddow
(S.D. Cal. 2020) 445 F.Supp. 3d 1042 ........................................... Jackson v. Mayweather
(2017) 10 Cal.App.5th 1240 ........................................................... Jackson v. Paramount Pictures Corp.
(1998) 68 Cal.App.4th 10 ......................................................... 52, Jankovic v. Int’l Crisis Grp.
(D.C. Cir. 2016) 822 F.3d 576 .................................................. 58, Kashian v. Harriman
(2002) 98 Cal.App.4th 892 ............................................................. Khawar v. Globe Int’l, Inc.
(1998) 19 Cal.4th 254 ...................................................................... Letter Carriers v. Austin
(1974) 418 U.S. 264 ......................................................................... Lincoln Unified Sch. Dist. v. Superior Court
(2020) 45 Cal.App.5th 1079 ........................................................... Mackey v. Bd. of Trs. of California State Univ.
(2019) 31 Cal.App.5th 640 .............................................................
Document received by the CA 1st District Court of Appeal.
Hailstone v. Martinez
(2008) 169 Cal.App.4th 728 ........................................................... 28Page 7 Makaeff v. Trump Univ., LLC
(9th Cir. 2013) 715 F.3d 254 .......................................................... McGarry v. Univ. of San Diego
(2007) 154 Cal.App.4th 97 ............................................................. Monterey Plaza Hotel v. Hotel Emps. & Rest. Emps.
(1999) 69 Cal.App.4th 1057 ........................................................... Moyer v. Amador Valley J. Union High Sch. Dist.
(1990) 225 Cal.App.3d 720 ............................................................ N.Y. Times Co. v. Sullivan
(1964) 376 U.S. 254 ......................................................................... Neville v. Chudacoff
(2008) 160 Cal.App.4th 1255 ........................... 26, 27, 38, 39, 41, Nygård, Inc. v. Uusi-Kerttula
(2008) 159 Cal.App.4th 1027 ................................. 29, 30, 32, 33,
Overstock.com, Inc. v. Gradient Analytics, Inc.
(2007) 151 Cal.App.4th 688 ..................................................... 49, Paiva v. Nichols
(2008) 168 Cal.App.4th 1007 ......................................................... Paulus v. Bob Lynch Ford, Inc.
(2006) 139 Cal.App.4th 659 ........................................................... Premier Med. Mgmt. Sys. v. Cal. Ins. Guarantee Ass’n
(2006) 136 Cal.App.4th 464 ........................................................... Reader’s Digest Assn. v. Superior Court
(1984) 37 Cal.3d 244 ..................................................... 55, 57, 62, Rearden LLC v. Rearden Commerce, Inc.
(N.D. Cal. 2009) 597 F.Supp.2d 1006 ........................................... Rosenaur v. Scherer
(2001) 88 Cal.App.4th 260 ............................................................. Ruiz v. Harbor View Cmty. Ass’n
(2006) 134 Cal.App.4th 1456 ................................................... 44, Seltzer v. Barnes
(2010) 182 Cal.App.4th 953 ........................................................... Sierra Club v. Superior Court
(2013) 57 Cal.4th 157 ......................................................................
Document received by the CA 1st District Court of Appeal.
Overhill Farms, Inc. v. Lopez
(2010) 190 Cal.App.4th 1248 ......................................................... 50Page 8 Simmons v. Allstate Ins. Co.
(2001) 92 Cal.App.4th 1068 ..................................................... 27, St. Amant v. Thompson
(1968) 390 U.S. 727 ......................................................................... Standing Comm. v. Yagman
(9th Cir. 1995) 55 F.3d 1430 .......................................................... Summerfield v. Randolph
(2011) 201 Cal.App.4th 127 ........................................................... Summit Bank v. Rogers
(2012) 206 Cal.App.4th 669 ........................................................... Sweetwater Union High Sch. Dist. v. Gilbane Bldg. Co.
(2019) 6 Cal.5th 931 ........................................................................ Tuszynska v. Cunningham
(2011) 199 Cal.App.4th 257 ...........................................................
Walker v. Kiousis
(2001) 93 Cal.App.4th 1432 ........................................................... Young v. CBS Broad., Inc.
(2012) 212 Cal.App.4th 551 ............................................... 53, 54, STATUTORY AUTHORITIES
Code Civ. Proc. § 425.16 .................................................. 22, 24, 25, 26, Code Civ. Proc. § 425.16(a) ...................................................................... Code Civ. Proc. § 425.16(b)(1) ........................................................... 26, Code Civ. Proc. § 425.16(c) ...................................................................... Code Civ. Proc. § 425.16(e)(2) ..................................................... 37, 41, Code Civ. Proc. § 425.16(e)(4) ................................................................. Code Civ. Proc. § 425.16(i) ....................................................................... Evid. Code § 451(e) ................................................................................... Evid. Code §§ 1552, 1553 ......................................................................... ADDITIONAL AUTHORITIES
Black's Law Dictionary (11th ed. 2019) ..................................................
Document received by the CA 1st District Court of Appeal.
Waldbaum v. Fairchild Publ’ns, Inc.
(D.C. Cir. 1980) 627 F.2d 1287 .......................................... 56, 58, 59Page 9 INTRODUCTION
A prominent critic of a public company and its CEO makes
numerous claims online about the company and its technology. The
CEO responds by stating true facts about actions taken by the critic
against the company and his opinions based on those facts. The
critic sues, claiming defamation.
The anti-SLAPP statute was
designed to prevent such a claim. The lower court erred by denying
the anti-SLAPP statute did not provide protection to the CEO’s
speech, that the CEO’s statements were defamatory because he used
the plural form of a word instead of the singular, and that the critic
had met his burden of proving Constitutional malice based solely on
the CEO’s alleged dislike of the critic.
Plaintiff/Respondent Randeep Hothi (“Hothi”) is a selfdescribed “citizen journalist” who, in his own words, “came to
prominence” as an online critic of Tesla’s manufacturing and
technology.
He also boasts of being a member of the so-called
“$TSLAQ” group whose goal is to destroy Tesla and which has been
the subject of extensive press attention. (See, infra, Section A.)
Document received by the CA 1st District Court of Appeal.
the CEO’s motion to strike and by finding, among other things, thatPage 10 In April 2019, Tesla obtained a temporary restraining order
against Hothi based on facts that remain undisputed to this day: (a)
Hothi placed remote cameras on Tesla property to film Tesla
employees and activities at its factory; (b) Hothi followed and filmed
Tesla employees who were operating a test car on the freeway and
roads; (c) Hothi visited a Tesla factory without invitation on
numerous occasions; and (d) a Tesla security employee reported
Tesla’s factory parking lot. (See, infra, Sections B-D.)
In August 2019, Tesla’s CEO, Defendant/Appellant Elon Musk
(“Musk”) was engaged in a series of emails with the operator of a
website that posts about Tesla, other companies, and the legal
system. In one of those emails, the website operator raised Hothi’s
assertions about Tesla and the company’s treatment of its “critics,”
including Hothi. In response, Musk stated what he believed to be
(and was) the truth.
Hothi had harassed Tesla employees and
“sideswipe[d]” a Tesla employee with his car, which Musk noted
could have been deadly with six inches of difference. The website
Document received by the CA 1st District Court of Appeal.
being struck by Hothi’s vehicle after catching him trespassing inPage 11 operator published the email exchange online. That is the entire
basis of Hothi’s defamation claim against Musk. (See, infra, Sections
E-F.)
Musk’s statements fall within the protection of the anti-SLAPP
statute. They related to issues of public interest, including Hothi’s
public assertions about Tesla’s operations, Tesla’s alleged treatment
of its critics, and the “$TSLAQ” conspiracy against the company.
restrictive test that Musk’s comments needed to be directly about
Tesla, not Hothi’s actions against the company, in order to
contribute to the debate on an issue of public importance. 1 (See,
infra, Section I(B).)
In terms of Hothi’s burden to establish he will likely prevail,
he cannot do so where the factual statements in Musk’s email were
true, and the rest of the statements were his opinions based on those
Musk’s comments were also directly related to issues in the
still-ongoing TRO action brought by Tesla against Hothi and to new
claims that Hothi had already threatened to bring against Musk,
which provide a separate ground for anti-SLAPP protection. (See,
infra, Section I(C).)
Document received by the CA 1st District Court of Appeal.
The lower court erred in finding otherwise, imposing an undulyPage 12 facts. The trial court erred by concluding it was likely that Musk’s
statements were false and defamatory, based solely on the notion
that he stated that Hothi put Tesla employees (plural) at risk, when
it was only one. (See, infra, Section II(A).)
And even if the statements were false (they were not), there
was zero evidence proffered by Hothi—never mind the required
clear and convincing evidence—that Musk knew his statements
“actual” or “constitutional” malice).
This is because Musk’s
statements were based on the reports of his employees who made
sworn statements about what had happened. The trial court erred in
finding that Hothi had met his burden on malice by pointing to
evidence that Musk disliked Hothi.
That is the wrong kind of
malice—in a defamation case, the plaintiff must prove actual malice,
which is knowledge of falsity or reckless disregard of the truth.
Hothi did not make any effort to prove that, which alone is
dispositive. (See, infra, Section II(B).)
A plaintiff cannot inject himself into a public debate and then
Document received by the CA 1st District Court of Appeal.
were false or made them with reckless disregard for the truth (i.e.,Page 13 sue for “defamation” when the target of his words and actions
responds with related facts and his own opinions. The trial court’s
order should be vacated, and this matter remanded with
instructions to grant Musk’s anti-SLAPP motion.
STATEMENT OF FACTS
A.
Hothi’s Rise to Prominence as a Tesla Critic.
In 2015, Hothi “developed an interest in Tesla’s business and,
(1 AA 11:21-
[Hothi’s Verified Complaint (“Compl.”), ¶ 9].) He created a Twitter
account with the handle @skabooshka and often tweeted “his
skepticism” about Tesla’s claims about its production and
technology. (1 AA 11:26-27 [Compl. ¶ 10].) His tweets included
supposed information about Tesla production and technology, as
well as his goal to bankrupt Tesla and have Musk sent to prison. (AA 92-130 [Zalduendo Decl. Ex. A].)
The trial court improperly sustained Hothi’s objections to
the consideration of Hothi’s tweets on authenticity grounds. (8 AA
832 [Order, p. 4].) However, an attorney declaration authenticating
the contents of a website is sufficient. (Rearden LLC v. Rearden
Commerce, Inc. (N.D. Cal. 2009) 597 F.Supp.2d 1006, 1027 [holding it
was “nonsensical proposition that an attorney cannot authenticate a
Document received by the CA 1st District Court of Appeal.
in particular, its claims about its technology.”Page 14 Hothi “came to prominence during 2018,” obtained more than
10,000 followers on Twitter, and “became part of the media
discussion about Tesla’s [alleged] production problems.”
(2 AA
166:4-18 [Hothi 8/12/19 Decl., ¶¶ 5, 6].) Hothi was also involved
extensively in public discussions regarding the automation of Tesla’s
Model 3 cars. (1 AA 12:3-26, 13:10-25 [Compl. ¶¶ 11-17, 20-24].)
Hothi is a member of the “so-called $TSLAQ, a wide-ranging
enterprise and who regularly share information on the social media
platform, Twitter” and who seek the downfall of the company. (AA 165:22-24 [Hothi 8/12/19 Decl., ¶ 2].)3 As Hothi has noted, the
print-out from a publicly accessible website”]; Evid. Code §§ 1552,
1553 [printouts of digital data presumed accurate].) Moreover, the
California Supreme Court has made clear that a court should
consider evidence at the anti-SLAPP stage as long as “it is
reasonably possible the proffered evidence set out in those
statements will be admissible at trial.” (Sweetwater Union High Sch.
Dist. v. Gilbane Bldg. Co. (2019) 6 Cal.5th 931, 949.) Hothi’s own
tweets would certainly be admissible at trial.
The group’s name ($TSLAQ) refers to what Tesla’s stock
ticker would become if the group successfully drives Tesla into
bankruptcy. The reason the conspirators are attacking Tesla is
because many “short” Tesla’s stock. Short selling is a way for an
investor to make a bet that a company’s stock will decrease in value.
Document received by the CA 1st District Court of Appeal.
group of people who are skeptical about the Tesla businessPage 15 $TSLAQ group has been featured in a documentary and “in various
newspaper articles, including the Los Angeles Times.”
(2 AA
165:25-27 [Hothi 8/12/19 Decl., ¶ 3].)
B.
Hothi’s Harassment of Tesla.
Hothi has gone to extreme lengths to obtain information about
Tesla, which has led to harassment of Tesla employees. Specifically:
1.
In the spring of 2018, Hothi began regularly publicly
parking lots and logistics lots, which are not open to the public. (AA 59 [Leslie Decl., p. 1]; 7 AA 638:9-13 [Hothi 1/11/21 Decl., ¶ 10]
[describing Hothi’s tracking of cars].) A collection of Hothi’s tweets
from July 2018 through April 2019 confirms that he routinely
surveilled the Tesla employee and contractor parking lots, then
posted information online about it. (1 AA 92-130 [Zalduendo Decl.,
The $TSLAQ conspirators make clear they wish to destroy the
company because they stand to profit from its demise. (1 AA 24:5-[Musk Verified Answer, ¶¶ 1-2].) Funding for Mr. Hothi’s litigation
has been organized by fellow $TSLAQ member and New York
financier, Laurence Fossi, who both appeared cc’ed on the email
correspondence underlying this defamation action (discussed infra)
Document received by the CA 1st District Court of Appeal.
posting photos and videos of the Tesla Fremont factory employeePage 16 Ex. A].)
2.
In August 2018, Tesla Security found an Arlo portable
camera mounted on a utility pole at the private property of the Tesla
Fremont factory, pointed at Tesla private property. (1 AA 59 [Leslie
Decl., p. 1].) An Arlo customer service representative provided the
registered email for the camera as “skabooshka@protonmail.com,”
which is Hothi’s email address. (Ibid.) In the lower court, Hothi did
Opp.].)
3.
In January 2019, a CamPak portable camera was
discovered inside a utility box in a private parking lot at the Tesla
Fremont factory, pointed at Tesla private property. (1 AA 59 [Leslie
Decl., p. 1].) The camera was examined, photographed, and left in
place. (Ibid.) Tesla security cameras were adjusted to observe the
location. (Ibid.) In January 2019, Hothi’s car was seen in the vicinity,
and Hothi was observed removing the camera (as well as another
camera, also planted on Tesla’s property). (Ibid.) Again, Hothi does
and is also Hothi’s attorney of record here. (Id. at 25:1-2 [Musk
Document received by the CA 1st District Court of Appeal.
not dispute that he had placed this camera. (7 AA 616-35 [HothiPage 17 not dispute that he planted this camera. (7 AA 616-35 [Hothi Opp.].)
4.
In April 2019, Hothi followed a Tesla test vehicle driven
by Tesla employees on public roads, taking photos and videos for
thirty minutes, which he then posted on Twitter. (7 AA 642:23643:11 [Hothi 1/11/21 Decl., ¶ 35-37].)5.
Hothi tried to speak with Tesla employees on numerous
occasions while visiting the factory uninvited. (7 AA 638:9-13 [Hothi
6.
Hothi made numerous phone calls to Tesla employees
to “gather information.” (7 AA 642:11-17 [Hothi 1/11/21 Decl. ¶ 33].)
Tesla employees updated Musk about Hothi’s actions,
including his internet postings regarding Tesla and the finding of his
remote cameras. (1 AA 69:9-13 [Musk Decl., ¶ 4].)
C.
Hothi’s Sideswipes a Tesla Employee.
On February 21, 2019, Tesla security observed Hothi’s car in
Verified Answer, ¶ 4].)
Even though Musk did not rely on this incident for
purposes of his anti-SLAPP motion, Hothi submitted this evidence
in opposition to the motion. (7 AA 642:23-643:11 [Hothi 1/11/Decl., ¶ 35-37].)
Document received by the CA 1st District Court of Appeal.
1/11/21 Decl., ¶ 10].)Page 18 the parking lot of Tesla’s Fremont factory. (1 AA 85 [James Decl., p.
1].) Two Tesla security officers were dispatched to deliver a verbal
notice of trespass. (Ibid.) As one of the security officers, Tyler James,
approached Hothi’s vehicle, Hothi made eye contact with James, but
refused to roll down his window. (Ibid.) Hothi then left the stall,
and “the drivers’ side of his vehicle made contact with [the officer’s]
left knee as he drove out of the stall.” (Ibid.)
notice of trespass while Hothi was stopped at a stop sign on a
private access road adjacent to the Tesla Fremont factory. (1 AA [Leslie Decl., p. 1].) The security officer who was hit reported it to
Tesla; Tesla reported the matter to the police; and the police later
confirmed that Hothi was the driver of the vehicle. (Id., p. 3.) Hothi
cannot deny that his car may have hit the officer, only stating that he
“does not believe” it did so. (7 AA 640:12-17 [Hothi 1/11/21 Decl. ¶
24].)
After the incident at the Tesla factory, Musk was informed by
Tesla security that Hothi had been caught trespassing at the Tesla
Document received by the CA 1st District Court of Appeal.
The Tesla officers followed Hothi and delivered a verbalPage 19 factory, and that he had hit a Tesla security officer with his car as he
fled the scene. (1 AA 69:14-18 [Musk Decl., ¶ 5].)
D.
Tesla’s Restraining Order Proceedings Against Hothi.
On April 19, 2019, Tesla filed an ex parte Petition for a
Temporary Restraining Order against Hothi, which was granted the
same day. (2 AA 215-21, 237-44 [RJN Ex. B, Petition, and Ex. C,
Order].) Hothi opposed Tesla’s request for a permanent restraining
1, 2019, the Court granted in part Hothi’s request to obtain discovery
from Tesla in advance of a hearing on Tesla’s request for a
permanent restraining order, including the production of Tesla’s
proprietary video and audio recordings. (2 AA 246-50 [RJN Ex. D,
7/1/19 Discovery Order].)
On July 26, 2019, Tesla withdrew its
Petition, choosing not to produce audio and video recordings that
would include Tesla’s confidential information and would invade
the privacy of Tesla employees, who had already been harassed
online due to the litigation with Hothi. (2 AA 253-54 [RJN Ex. E,
Letter to Court from Tesla and Withdrawal of Petition].)
Document received by the CA 1st District Court of Appeal.
order. (6 AA 570-87 [RJN Ex. L, Hothi Opp. to Injunction].) On JulyPage 20 On July 19, 2019, Hothi’s counsel sent a letter to Tesla stating
that he “intend[s] to file a civil action for malicious prosecution”
related to Tesla’s pursuit of the restraining order.
(1 AA
[Zalduendo Decl. Ex. E, 7/19/19 Sperlein letter].) On August 13,
2019, Hothi sought recovery of his attorneys’ fees in connection with
Tesla’s petition. (3 AA 269-88 [RJN Ex. G, Fees Mtn.].) The Court
denied Hothi’s motion on October 28, 2019. (5 AA 401-02 [RJN Ex.
E.
Musk’s Emails to Greenspan.
On August 7, 2019, Aaron Greenspan, who operates a website
that covers topics such as Tesla, other companies, and the legal
system,5 emailed Musk asking about any assets he holds outside the
United States. (1 AA 73-75 [Musk Decl. Ex. A, Greenspan 8/7/email at 12:11 p.m.].)6 Musk responded. (1 AA 77 [Musk Decl. Ex.
The website, plainsite.org, purports to make “huge volumes
of data accessible to the public free of charge” and to let “ordinary
citizens impact the law-making process.” (1 AA 139 [Zalduendo
Decl. Ex. D].)
Hothi’s counsel in this action, Lawrence Fossi, was bcc’ed
on Greenspan’s first email to Musk. Fossi replied to all, revealing
Document received by the CA 1st District Court of Appeal.
H, 10/28/19 Order on Fees Mtn.].)Page 21 A, Musk 8/7/19 email at 2:05 p.m.].)
After further exchanges,
Greenspan wrote another email, raising issues about Tesla’s
Autopilot system and Tesla’s interactions with the National
Highway Traffic Safety Administration. (1 AA 77 [Musk Decl. Ex. B,
Greenspan 8/7/19 email at 4:03 p.m.].)
In that same email, Greenspan wrote: “Second, the way your
organization has treated Anna Watson, Christina Balan, Martin
shameful, and has exemplified anything but openness. Randeep
was interested in your factory output precisely because you weren’t
being open at all . . . .” (Ibid.). Musk replied on August 7, 2019:
The data is unequivocal that Autopilot is safer
than human driving by a significant margin. It is
unethical and false of you to claim otherwise. In
doing so, you are endangering the public.
As for the people you mention, below, they
have actively harassed and, in the case of Hothi,
almost killed Tesla employees. What was a
sideswipe when Hothi hit one of our people
could easily have been a death with 6 inches of
difference.
his inclusion in the correspondence, which was noted by Musk in his
reply to Greenspan’s first email. (1 AA 73 [Musk Decl. Ex. A].)
Document received by the CA 1st District Court of Appeal.
Tripp, Karl Hansen, and Randeep Hothi—among others—is trulyPage 22 How can you possibly endorse this? You
obviously couldn’t care less about the truth.
(1 AA 77 [Musk Decl. Ex. B, Musk 8/7/19 email at 5:46 p.m.].)
Greenspan responded about Musk’s statements related to
Autopilot technology and also stated about Hothi: “So you’ll have
to do better than trying to pin an almost-but-not-even-close murder
on Randeep. No one was even injured. Any one of your vehicles
could kill someone with 6 inches of difference, if, for example, there
Greenspan 8/7/19 email at 6:17 p.m., emphasis added].) Greenspan
then published the full email exchange with Musk on his Twitter
and his website. (1 AA 15:24-26 [Compl., ¶ 36].)
F.
Hothi’s Lawsuit and Musk’s Motion to Strike.
On August 4, 2020, Hothi brought this action, alleging a single
claim for defamation against Musk. Musk’s August 7, 2019 email is
the entire basis for Hothi’s lawsuit. (1 AA 16:10-13 [Compl., ¶ 40].)
On October 30, 2020, Musk filed a motion to strike pursuant to
Cal. Code Civ. Proc. Section 425.16. (1 AA 34-55 [Mtn. to Strike].)
Hothi filed his opposition on January 11, 2021, and Musk filed his
Document received by the CA 1st District Court of Appeal.
was a sudden acceleration event . . .” (1 AA 79 [Musk Decl. Ex. C,Page 23 reply on January 20, 2021. (7 AA 618-435 Opp. to Mtn. to Strike]; AA 781-795 [Reply to Mtn. to Strike].)
On January 27, 2021, the trial court issued its order denying
Musk’s motion and finding, among other things: (a) that Musk’s
statements were not protected by the anti-SLAPP statute as being
“in connection with a public issue” because they were about “the
alleged conduct of Plaintiff” and “not statements regarding Tesla’s
issue under consideration by a court because “the TRO Petition had
already been dismissed [and] [w]hile there was a motion for
attorney’s fees after the email was written, the fees were not the
subject of the alleged defamatory statements”; (c) that “there are
triable issues of facts” regarding falsity because “Plaintiff allegedly
injured the security officer at the Tesla Fremont factory, but the
subject statements accuse Plaintiff of almost killing multiple Tesla
employees”; (d) that there was no requirement of actual malice
because the statements were not germane to a public controversy, as
they “do not concern Plaintiff’s opinion on the operations of Tesla”;
Document received by the CA 1st District Court of Appeal.
operations or its vehicles”; (b) that the statements did not concern anPage 24 and (e) that “Plaintiff can demonstrate malice” based solely on
evidence that Musk allegedly disliked Hothi, namely a cartoon
Musk posted on Twitter of a popular meme the same day as the
TRO application and statements made by Musk in court filings. (AA 829-32 [1/27/21 Order].)
STATEMENT OF APPEALABILITY
The trial court denied appellants’ special motion to strike
[1/27/21 Order].) Appellants timely noticed an appeal on March 24,
2021. (8 AA 835 [Notice of Appeal].) Consequently, the January 27,
2021 order is appealable under Code of Civil Procedure section
425.16(i).
STANDARD OF REVIEW
This Court applies de novo review to all aspects of the Section
425.16 analysis. (Tuszynska v. Cunningham (2011) 199 Cal.App.4th
257, 266-67 [“On appeal, we review the trial court’s decision de novo,
engaging in the same two-step process to determine, as a matter of
law, whether the defendant met its initial burden of showing the
action is a SLAPP, and if so, whether the plaintiff met its evidentiary
Document received by the CA 1st District Court of Appeal.
under the anti-SLAPP statute on January 27, 2021. (8 AA 829-32Page 25 burden on the second step.”]; Cabral v. Martins (2009) Cal.App.4th 471, 478 [“‘A ruling on a special motion to strike under
section 425.16 is reviewed de novo. This includes whether the antiSLAPP statute applies to the challenged claim. Furthermore, we
apply our independent judgment to determine whether [plaintiff’s]
causes of action arose from acts by [defendant] in furtherance of
[defendant’s] right of petition or free speech in connection with a
then independently determine, from our review of the record as a
whole, whether [plaintiff] has established a reasonable probability
that he would prevail on his claims.’”], citations omitted.)
ARGUMENT
I.
THE ANTI-SLAPP STATUTE APPLIES TO HOTHI’S
CLAIM FOR DEFAMATION AGAINST MUSK.
A.
The Anti-SLAPP Statute Applies to Any Act in
Furtherance of a Person’s Exercise of Free Speech on a
Public Issue.
California’s
anti-SLAPP statute,
Section
425.16 of
the
California Code of Civil Procedure, provides a prompt means of
Document received by the CA 1st District Court of Appeal.
public issue. Assuming these two conditions are satisfied, we mustPage 26 terminating lawsuits that tend to chill the exercise of the
constitutional rights of petition and free speech. (Haight Ashbury
Free Clinics, Inc. v. Happening House Ventures (2010) 184 Cal.App.4th
1539, 1547.)
The statute requires dismissal of causes of action
“arising from any act . . . in furtherance of [a] person’s right of
petition or free speech under the United States or California
Constitution in connection with a public issue . . . , unless the court
probability that the plaintiff will prevail on the claim.” (Cal. Civ.
Proc. Code § 425.16(b)(1).)
Section 425.16 “shall be construed
broadly.” (Id. at § 425.16(a).)
Courts engage in a two-step analysis when applying the antiSLAPP statute: “First, the court decides whether the [moving party]
has made a threshold showing that the challenged cause of action is
one arising from protected activity.” (Neville v. Chudacoff (2008) Cal.App.4th 1255, 1261 (Neville), internal citation omitted.) “In the
anti-SLAPP context, the critical point is whether the plaintiff’s cause
of action itself was based on an act in furtherance of a person’s right
Document received by the CA 1st District Court of Appeal.
determines that the plaintiff has established that there is aPage 27 of petition or free speech under the United States or California
Constitution[.]” (Premier Med. Mgmt. Sys. v. Cal. Ins. Guarantee Ass’n
(2006) 136 Cal.App.4th 464, 472, citation omitted.) “A cause of action
is subject to a motion to strike under the anti-SLAPP statute even if it
is based only in part on allegations regarding protected activity.”
(Ibid., citation omitted.)
Once a court determines that the anti-SLAPP statute applies, it
determines
whether
the
[complaining
party]
has
demonstrated a probability of prevailing on the claim.” (Neville,
supra, 160 Cal.App.4th at 1261-62.) An anti-SLAPP motion, “like a
summary judgment motion, pierces the pleadings and requires an
evidentiary showing.”
(Simmons v. Allstate Ins. Co. (2001)
Cal.App.4th 1068, 1073 (Simmons).) “If the initial evidentiary burden
is met by the moving party, the burden shifts to the party opposing
the motion to avoid dismissal of the action.” (Ibid.)
The anti-SLAPP statute applies here for two independent
reasons: (1) Musk’s email arose from his right of free speech in
Document received by the CA 1st District Court of Appeal.
“thenPage 28 connection with a public issue; and (2) the email concerned issues
that were under consideration by a court.
B.
Hothi’s Claims Arise from Musk’s Speech on Several
Issues of Public Interest.
Pursuant to its terms, the anti-SLAPP statute protects any
exercise of free speech “in connection with a public issue or an issue
of public interest.”
(Cal. Code Civ. Proc. § 425.16(e)(4).)
This
interest; no public forum is required. (Hailstone v. Martinez (2008)
169 Cal.App.4th 728, 736.) Nor is the extent of the “publication”
determinative. “Regardless of the scope of publication, protection
under the anti-SLAPP statute turns on whether the activity of the
defendant involves the right of petition or free speech in connection
with a public issue.” (Dyer v. Childress (2007) 147 Cal.App.4th 1273,
1282.)
As the California Supreme Court has outlined, courts utilize a
two-part analysis to determine whether a statement is protected as
one “in connection with a public issue or an issue of public interest”:
Document received by the CA 1st District Court of Appeal.
includes private communications concerning issues of publicPage 29 “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.
Second, we ask what functional
relationship exists between the speech and the public conversation
about some matter of public interest.”
(FilmOn.com Inc. v.
DoubleVerify Inc. (2019) 7 Cal.5th 133, 149-50 (FilmOn).)
1.
The Actions of Tesla, Musk, and the $TSLAQ
Group Are Matters of Public Interest.
defendants “virtually always” succeed in identifying issues of public
interest connected to the speech. (Id. at p. 152 [holding defendant
had met burden].) Matters of public interest “include activities that
involve private persons and entities, especially when a large,
powerful organization may impact the lives of many individuals.”
(Du Charme v. Int’l Bhd. of Elec. Workers, Local 45 (2003) Cal.App.4th 107, 115, citation omitted.) An issue may still be of
public interest without being widely important or significant.
(Nygård, Inc. v. Uusi-Kerttula (2008) 159 Cal.App.4th 1027, (Nygård) [statements to magazine about work experience for
Document received by the CA 1st District Court of Appeal.
As to the first part, the Supreme Court has recognized thatPage 30 prominent businessman and celebrity were of public interest].) This
is particularly true when the issue involves a high-profile person
like Musk. (Ibid.; see also Jackson v. Mayweather (2017) 10 Cal.App.5th
1240, 1254 [statements about girlfriend of prominent boxer getting
cosmetic surgery matter of public interest]; Hall v. Time Warner, Inc.
(2007) 153 Cal.App.4th 1337, 1347 [issues related to Marlon Brando’s
will matter of public interest].)
are matters of public interest. (Cal. Pub. Emp. Ret. System v. Moody’s
Inv’rs Serv., Inc. (2014) 226 Cal.App.4th 643, 660 [statement about
financial condition of structured investment protected]; GetFugu, Inc.
v. Patton Boggs LLP (2013) 220 Cal.App.4th 141, 151 [statements
about corporation being under FBI investigation matter of public
interest]; Ampex Corp. v. Cargle (2005) 128 Cal.App.4th 1569, (Ampex) [statements “about corporate activity constitute an issue of
public importance upon considering the following pertinent factors:
(1) whether the company is publicly traded; (2) the number of
Document received by the CA 1st District Court of Appeal.
Similarly, statements related to public companies like TeslaPage 31 investors; and (3) whether the company has promoted itself by
means of numerous press releases”].)
Here, there were several relevant issues of public interest:
(i)
The manufacturing and technology of Tesla and
Hothi’s public statements on those topics.
As Hothi concedes,
there was public interest in “Tesla’s manufacturing operations” and
“technological capabilities” which he researched as a purported
particular, Hothi entered the public debate about claims made by
Tesla and Musk regarding Tesla’s automation technology and the
rate of Tesla’s Model 3 production. (Id. at 637:15-638:26 [¶¶ 4-15].)
Hothi asserts that he “came to prominence” based on his
“observations about Tesla’s Model 3 production rates,” which he
posted on Twitter, purportedly gaining thousands of Twitter
followers as a result. (3 AA 291:4-17 [Hothi 8/12/19 Decl., ¶¶ 5, 6].)
Hothi also claims that his posts about Tesla’s automation technology
received widespread public attention.
(Id. at 292:10-20 [Hothi
8/12/19 Decl., ¶ 10].) These are all matters related to a an issue of
Document received by the CA 1st District Court of Appeal.
“citizen journalist.” (7 AA 637:8-13 [Hothi 1/11/21 Decl., ¶ 3].) InPage 32 public interest, as shown in the attention Hothi claims to have
drawn. (Ampex, supra, 128 Cal.App.4th at 1576; Nygård, supra, Cal.App.4th at 1039.)
(ii)
The treatment of critics by Tesla and Musk. There was
likewise public interest in how Tesla and Musk treats critics. Hothi
claims that as part of his work as a “citizen journalist” he has
“revealed discrepancies in claims [Tesla] and [Musk] have made
637:15-638:2 [Hothi 1/11/21 Decl., ¶¶ 4-15].) Likewise, in the email
to which Musk responded, Greenspan criticized Musk about “the
way [his] organization has treated” certain employees and others,
citing
a litigation that he alleged made Musk “come off as
incredibly hostile as a CEO.”
(1 AA 77 [Musk Decl. Ex. B,
Greenspan 8/7/19 email at 4:03 p.m].) Indeed, the very paragraph in
Greenspan’s email to which Musk responds cites public internet
postings by Greenspan about Tesla’s “treatment” of its critics. (Ibid.)
(linking to www.plainsite.org/ tags/tesla-workers-rights).
These
public debates about the actions of Tesla and Musk are all matters of
Document received by the CA 1st District Court of Appeal.
about Tesla’s . . . treatment of its employees and customers.” (7 AAPage 33 public interest.
(Ampex, supra, 128 Cal.App.4th at 1576; Nygård,
supra, 159 Cal.App.4th at 1039.)
(iii)
The $TSLAQ conspiracy against Tesla.
Hothi has
admitted that the “$TSLAQ phenomenon” involves a “wide-ranging
group of people” who have been featured in a documentary and
“described in various newspaper articles.” (3 AA 290:21-27 [Hothi
8/12/19 Decl., ¶¶ 2, 3].) Hothi is a member of this group, which is
company’s downfall. (Id. at 290:21-24 [¶ 2]; 1 AA 24:5-12 [Musk
Verified Answer, ¶¶ 1-2].)
(See Gilbert v. Sykes (2007)
Cal.App.4th 13, 23 (Gilbert) [the public interest requirement must be
“construed broadly”]; Nygård, supra, 159 Cal.App.4th at 1039 [“Any
issue in which the public takes an interest is of ‘public interest.’”].)
2.
Musk’s Statements Related Directly to the
Issues of Public Interest.
As to the second step, the Court determines whether a
statement “contributes to—that is, participates in or furthers—some
public conversation on this issue.” (FilmOn, supra, 7 Cal.5th at p.
152, internal quotation omitted.)
In doing so, the Court should
Document received by the CA 1st District Court of Appeal.
“skeptical about the Tesla business enterprise” and seeks thePage 34 consider the context “including audience, speaker, and purpose.”
(Ibid.) Each of the considerations identified by the Supreme Court in
determining
whether
a
statement
contributes
to
a
public
conversation weighs in favor of protecting Musk’s statements:
Audience:
Owner of website that posts information
about Tesla and lawsuits to the public (who then
published his exchange with Musk to the world).
receives worldwide, daily media attention.
Purpose: To counter allegations that Tesla and Musk
had misled the public about its technology and
production and that Tesla mistreats those who criticize
the company, and to correct the record about actions of
the $TSLAQ community to cause harm to Tesla.
The trial court held that the challenged statements did not
contribute to a public conversation because the “defamatory
In fact, Greenspan’s first email to Musk in this exchange
cc’ed prominent individuals who had or were then presently serving
on Tesla’s board of directors. (1 AA 73-75 [Musk Decl. Ex. A].)
Document received by the CA 1st District Court of Appeal.
Speaker: World-famous CEO of public company whoPage 35 statements do not concern Tesla’s conduct, but the alleged conduct
of Plaintiff.” (8 AA 831 [1/27/21 Order at p. 3].) However, this
application of the test is overly restrictive for several reasons:
First,
Musk’s
statements
“contribute[d]
to—that
is,
participate[d] in or further[ed]” a public conversation regarding
Tesla’s manufacturing and technology. (FilmOn, supra, 7 Cal.5th at
p. 152.)
The California Supreme Court has made clear that the
discourse, not “the social utility of the speech at issue, or to the
degree to which it propelled the conversation in any particular
direction.” (Id. at p. 151.) As fully described above, Hothi made
numerous
public
claims
about
Tesla’s
manufacturing
and
technology. (See, supra, Section I(B)(1)(i).) Musk “furthered” the
debate on those same issues by pointing out Hothi’s unreliable and
improper methods for obtaining his supposed information—namely
harassing Tesla employees (through the use of planted cameras,
uninvited visits to the factory, following test cars, sideswiping an
employee while trespassing, etc.). (See, supra, Sections I(B)-(C); Copp
Document received by the CA 1st District Court of Appeal.
relevant question is whether the speech furthered or contributed to aPage 36 v. Paxton (1996) 45 Cal.App.4th 829, 846 (Copp) [statements about
plaintiff “were germane to the public controversy [because] [t]he
public needed to know whether there was reason to listen to him”].)
Second, Musk’s statements are directly related to the
discussion of Tesla’s and Musk’s alleged mistreatment of their
critics.
Greenspan directly challenged Musk, stating that his
treatment of Hothi and others was “shameful” and that Hothi was
[Musk Decl. Ex. B, Greenspan 8/7/19 email at 4:03 p.m.].) Musk
responded directly to that assertion, stating that it was Hothi who
had engaged in misconduct. (Id. [Musk Decl., Ex. B, 8/7/19 email at
5:46 p.m.].)
Third, although the trial court held there was no evidence that
the conduct of the $TSLAQ community was a matter of public
interest, (8 AA 831 [1/27/21 Order at p. 3], that is contradicted by
Hothi’s own admissions that the group has received extensive media
coverage. (3 AA 290:25-27 [Hothi 8/12/19 Decl., ¶ 3].) Misconduct
by members of this group against Tesla is related directly to the
Document received by the CA 1st District Court of Appeal.
just someone who “was interested in your factory output.” (1 AA 77Page 37 group’s goal of destroying the company, which has been repeated
by Hothi, who also has publicly stated he wants to send Musk to jail.
(1 AA 125 [Zalduendo Decl. Ex. A, Hothi April 20, 2019 tweet].)
***
Because there were several issues of public interest and a
direct relationship between the speech and the public conversation
of those issues, Musk’s statements are protected by the anti-SLAPP
C.
Hothi’s Claim Also Arises from Musk’s Speech About
Issues that Were Pending Before The Court.
1.
The Anti-SLAPP Statute Protects Speech About
Pending or Threatened Cases.
The anti-SLAPP statute also protects statements that relate to
an issue under consideration or review by a judicial body. (Cal.
Code Civ. Proc. § 425.16(e)(2).) This is an independent grounds for
application of the statute and does not depend on whether it relates
to a matter of public interest. “[A]ll that matters is that the First
Amendment activity . . . be made in connection with an issue being
Document received by the CA 1st District Court of Appeal.
statute. (FilmOn, supra, 7 Cal.5th at 149-50.)Page 38 reviewed by an official proceeding.” (Briggs v. Eden Council for Hope
& Opportunity (1999) 19 Cal.4th 1106, 1116.)
A statement is “in connection with” litigation if it “relates to
the substantive issues in the litigation and is directed to persons
having some interest in the litigation.” (Neville, supra, Cal.App.4th at 1266; Seltzer v. Barnes (2010) 182 Cal.App.4th 953, [“courts have adopted a fairly expansive view of what constitutes
internal quotation omitted.) Statements to non-parties, including the
press, are protected, if they relate to an issue being litigated.
(Summerfield v. Randolph (2011) 201 Cal.App.4th 127, 136 [statute
“has been held to protect statements to persons who are not parties
or potential parties to the ligation . . .”], internal quotation omitted;
Annette F. v. Sharon S. (2004) 119 Cal.App.4th 1146, 1161 (Annett F.)
[statements about alleged abuse to newspaper protected because
they “were made in connection with an issue under consideration or
Document received by the CA 1st District Court of Appeal.
litigation-related activities within the scope of section 425.16.”],Page 39 review by a . . . judicial body.”].)8 As fully described below, these
same rules apply to statements about litigation that is merely
threatened. (Neville, supra, 160 Cal.App.4th at 1261.)
Musk’s statements here related to issues in two separate
lawsuits—the harassment case brought by Tesla against Hothi and
the malicious prosecution action threatened by Hothi against Tesla.
2.
The Challenged Statements Related to the
Ongoing Injunction Proceeding.
ongoing at the time of Musk’s email. Musk sent his email on August
7, 2019. (1 AA 77 [Musk Decl. Ex B.) This was between the time
when Musk withdrew his application for a preliminary injunction
(July 26) and when Hothi filed a motion for attorney’s fees in the
same case (August 13). (2 AA 253-54 [RJN Ex. E, letter to the Court];
3 AA 269-88 [RJN Ex. G, Fees Mtn.].) The case continued until the
This standard is less restrictive than that of the litigation
privilege, which requires that the third party have a “substantial
interest” in the subject matter. (Argentieri v. Zuckerberg (2017) Cal.App.5th 768, 782.)
Document received by the CA 1st District Court of Appeal.
The restraining order litigation between Hothi and Tesla wasPage 40 trial court denied Hothi’s fee motion on October 28, 2019. (5 AA
401-02 [RJN Ex. H, Order Denying Fees Mtn.].)
There is no question that the restraining order litigation
related directly to the same issues about which Musk wrote.
It
concerned Hothi’s repeated harassment of Tesla employees,
including the incident in which he sideswiped a security officer. (AA 215-21 [RJN Ex. B, Tesla’s TRO Petition].)
because “the TRO Petition had already been dismissed” and “the
fees were not the subject of the allegedly defamatory statements.” (AA 831 [1/27/21 Order at p. 3].) However, in the attorneys’ fees
motion, Hothi specifically argued (a) that “Tesla and its CEO Elon
Musk have a history of silencing critics” and (b) that Hothi had not
engaged in “harassment” or hit a Tesla security employee. (3 AA
283-88 [RJN Ex. G, Fees Mtn. at 10-14].) These, of course, are the
exact topics of Musk’s email. (1 AA 77 [Musk Decl. Ex. B) (See
Annette F., supra, 119 Cal.App.4th at 1160-61 [finding statement was
Document received by the CA 1st District Court of Appeal.
The trial court held that anti-SLAPP protection did not applyPage 41 in connection with an issue under consideration by a court because
they were “directly at issue” in those proceedings].)
3.
The Challenged Statements Related to Hothi’s
Threatened Case Against Musk.
On July 19, 2019, (prior to Musk’s email), Hothi sent a demand
letter to Tesla threatening a new malicious prosecution action based
on Tesla’s restraining order litigation (which, in turn, was based on
Hothi’s harassment and sideswiping of a Tesla employee). (1 AA
Hothi had threatened a lawsuit (whether ultimately spurious or
not), Musk’s statements related to those topics are separately
protected, as numerous cases have held. (See, e.g., Neville, supra, Cal.App.4th at 1261 [pre-litigation communications or demand
letters
regarding
“impending
litigation”
are
issues
under
consideration by judicial body for purposes of section 425.16(e)(2)];
Gotterba v. Travolta (2014) 228 Cal.App.4th 35, 41 [same]; Canaday v.
Document received by the CA 1st District Court of Appeal.
141-42 [Zalduendo Decl., Ex. E, Sperlein 7/19/19 letter].) BecausePage 42 Peoples-Perry (N.D. Cal. Dec. 15, 2017) 2017 WL 6405618, at *[“threat of litigation” enough to qualify for anti-SLAPP protection].)***
Because of the complete overlap between the topics of Musk’s
email and both (a) the pending injunction/attorney’s fees litigation
and (b) the threatened malicious prosecution litigation, Musk’s
statements are protected by the anti-SLAPP statute (in addition to
interest). (See Cal. Code. Civ. Proc. 425.16(e)(2); Neville, supra, Cal.App.4th at 1266.)
II.
HOTHI DID NOT DEMONSTRATE A PROBABILITY OF
PREVAILING.
Where, as here, the anti-SLAPP statute applies, a plaintiff
must show a probability of success to avoid summary dismissal of
its claims.
(Simmons, supra, 92 Cal.App.4th at 1073.)
It is the
plaintiff’s burden to establish that there is a probability that he will
Although the issue of threatened litigation was briefed to
the trial court, (1 AA 46:22-48:4 [Mtn. to Strike].), it was not
addressed in the order. (8 AA 829-32 [1/27/21 Order].)
Document received by the CA 1st District Court of Appeal.
being protected as a statement in connection with an issue of publicPage 43 prevail on his claims.
(Cal. Civ. Proc. Code § 425.16(b)(1).)
Evaluating the probability of success requires analysis of the key
elements of the claim at issue (defamation), which are falsity and
actual malice. Hothi did not meet his burden of establishing either
element.
A.
Hothi Did Not Establish Falsity.
1.
The Applicable Law Concerning Falsity.
existence of falsehood.” (Monterey Plaza Hotel v. Hotel Emps. & Rest.
Emps. (1999) 69 Cal.App.4th 1057, 1064, quoting Letter Carriers v.
Austin (1974) 418 U.S. 264, 283.) “There can be no recovery for
defamation without a falsehood. Thus, to state a defamation claim
that survives a First Amendment challenge, plaintiff must present
evidence of a statement of fact that is provably false.” (Gilbert, supra,
147 Cal.App.4th at 27, emphasis in original, internal quotation
omitted.)
Statements “cannot form the basis of a defamation action if
they cannot reasonably be interpreted as stating actual facts about
an individual. Thus, rhetorical hyperbole, vigorous epithet[s], lusty
Document received by the CA 1st District Court of Appeal.
“The sine qua non of recovery for defamation . . . is thePage 44 and imaginative expressions of contempt, and language used in a
loose, figurative sense have all been accorded constitutional
protection.” (Ibid., internal quotations omitted.)
Similarly, an opinion is “actionable only if it could reasonably
be understood as declaring or implying actual facts capable of being
proved true or false. . . . An opinion is not actionable if it discloses
all the statements of fact on which the opinion is based and those
Cal.App.4th 1456, 1471 (Ruiz), internal quotations omitted.)
To determine “whether the statements in question are
provably false factual assertions, courts consider the totality of the
circumstances. Whether challenged statements convey the requisite
factual imputation is ordinarily a question of law for the court.”
(Nygård, supra, 159 Cal.App.4th at 1049, internal quotations omitted.)
2.
The Challenged Statements Were True.
In the challenged email, Musk made three statements that
Hothi claims are defamatory:
that he “actively harassed” Tesla employees;
that he “sideswiped”/“hit one of our people”;
Document received by the CA 1st District Court of Appeal.
statements are true . . .” (Ruiz v. Harbor View Cmty. Ass’n (2006) 134Page 45 that a sideswipe “could easily have been a
death with 6 inches of difference”/he “almost
killed” Tesla employees.
(1 AA 77 [Musk Decl., Ex. B, Musk 8/7/19 email at 5:p.m.].)
(a)
Statement that Hothi “Harassed” Tesla Employees.
There is ample, undisputed evidence that Hothi harassed
He surveilled Tesla’s parking lots and took
numerous pictures over the course of months, which he then posted
on Twitter; he posted about the activities of Tesla employees; he was
caught trespassing on Tesla property and hit a Tesla employee with
his car when fleeing the scene; he planted hidden cameras to secretly
record Tesla operations and report on the activities of Tesla
employees causing Tesla to spend time and resources on countersurveillance; he tried to speak with employees numerous times
when visiting the factory uninvited; he tracked cars in the factory
parking lots; he made phone calls to Tesla sales centers to “gather
Document received by the CA 1st District Court of Appeal.
Tesla employees.Page 46 information,” and he followed Tesla employees on the freeway,
while taking pictures and videos. (See, supra, Sections B-C.)
These actions could reasonably and accurately be described as
“harassment.” (Summit Bank v. Rogers (2012) 206 Cal.App.4th 669,
699 [in defamation case, “statements must be viewed from the
perspective of the average reader”]; 6 AA 548 [RJN Ex. J, MerriamWebster
Dictionary
(2020),
defining
harass
as
“to
annoy
especially by uninvited and unwelcome . . . conduct.”].)Although Hothi’s harassment here is clear, even if it were not,
Musk’s statements would be protected as opinions. (See Ruiz, supra,
The trial court improperly refused to take judicial notice of
the definition of the word “harass.” (8 AA 832 [1/27/21 Order at p.
4].) However, courts are required to do so. (See Evid. Code § 451(e)
[courts shall take judicial notice of “[t]he true signification of all
English words and phrases . . . .”]; see also, e.g., Sierra Club v. Superior
Court (2013) 57 Cal.4th 157, 171 [California Supreme Court taking
judicial notice of dictionary definition]; Lincoln Unified Sch. Dist. v.
Superior Court (2020) 45 Cal.App.5th 1079, 1092 [holding MirriamWebster online dictionary was “proper source to determine the
usual and ordinary meaning of words”].)
Document received by the CA 1st District Court of Appeal.
persistently” or to “create an unpleasant or hostile situation forPage 47 134 Cal.App.4th at 1472-
[defendant’s accusation of plaintiff
“harassing” a board and “virtually stalking” the directors not
actionable statement of fact]; Rosenaur v. Scherer (2001) Cal.App.4th 260, 278-279 [calling plaintiff “thief” and “liar”
protected].)
The trial court held that Musk’s statement was “at best . . . [an]
opinion[] implying assertions of fact.” (8 AA 832 [1/27/21 Order at
terms of an opinion can be actionable where it implies an assertion
of objective fact. (7 AA 629:23-27 [Hothi Opp. at 10].) While that is
accurate, for the statement to be defamatory, the implied facts must
be false. (Moyer v. Amador Valley J. Union High Sch. Dist. (1990) Cal.App.3d 720, 724 [dispositive question is whether “the published
statements imply a provably false factual assertion.”], emphasis
added.) Here, Hothi did not show that Musk’s statement about
Hothi “harassing” Tesla employees was false under that word’s
ordinary meaning, and he did not show that the statement implied
any false facts.
Indeed, Hothi has admitted all the factual
Document received by the CA 1st District Court of Appeal.
p. 4].) In the lower court, Hothi argued that a statement couched inPage 48 underpinnings of Musk’s statement. (See, supra, Sections A-F.) As
such, Hothi has not met his burden of showing that Musk made a
“statement of fact that is provably false.”
(Gilbert, supra,
Cal.App.4th at p. 27.)
(b) Statement that Hothi Sideswiped a Tesla Employee. It is
undisputed that a Tesla security officer reported to his superiors that
he had been struck by Hothi’s vehicle, reported the same to police,
temporary restraining order) stating that Hothi hit him with his
vehicle. (See, supra, Section C.) Musk was aware of, and relied on,
this declaration as well as the fact that the employee told his
superiors that he had been hit by Hothi, and that Tesla had filed a
police report based on the incident, at the time he wrote the email to
Greenspan. (1 AA 69:25-70:12 [Musk Decl., ¶ 7].)
Hothi did not submit any evidence that directly contradicts
the sworn declaration of the Tesla employee. Hothi’s declaration
only said that he “does not believe” he struck Mr. James. (7 AA
640:12-17 [Hothi 1/11/21 Decl. ¶ 24].) As such, Hothi has not met his
Document received by the CA 1st District Court of Appeal.
and submitted a declaration (in connection with Tesla’s request for aPage 49 burden of showing that Musk’s statements about Hothi sideswiping
a Tesla employee are provably false. (Cf. Mackey v. Bd. of Trs. of
California State Univ. (2019) 31 Cal.App.5th 640, [in summary
judgment context, party does not create triable issue “by asserting
facts based on mere speculation and conjecture, but instead must
produce admissible evidence . . .”].)
(c) Statements About Danger of Hothi’s Actions. Musk’s
inches of difference” and that Hothi “almost killed” Tesla employees
are protected opinions, based on the report that Hothi sideswiped
the Tesla officer while fleeing Tesla’s property. (1 AA 69:25-70:[Musk Decl. ¶ 7].)
These statements were Musk’s opinions based on facts that
were disclosed in the same document.
In making a falsity
determination, courts must analyze the statement in context and
“examine
the
communication.”
nature
and
full
content
of
the
particular
(Overstock.com, Inc. v. Gradient Analytics, Inc.
(2007) 151 Cal.App.4th 688, 701 (Overstock).) As courts have held:
Document received by the CA 1st District Court of Appeal.
statements that a sideswipe “could easily have been a death with 6Page 50 A statement of opinion based on fully disclosed
facts can be punished only if the stated facts are
themselves false and demeaning. . . . When the
facts underlying a statement of opinion are
disclosed, readers will understand they are
getting the author’s interpretation of the facts
presented.
(Standing Comm. v. Yagman (9th Cir. 1995) 55 F.3d 1430, 1439; Overhill
Farms, Inc. v. Lopez (2010) 190 Cal.App.4th 1248, 1263, same, quoting
Standing Comm.; see also Herring Networks, Inc. v. Maddow (S.D. Cal.
discloses the facts on which he bases his opinion, the reader can
gauge for himself whether the factual basis adequately supports the
opinion.], internal quotation omitted.)
Here, the full factual basis of Musk’s opinions were disclosed
in his back-and-forth with Greenspan, all of which was published:
(a) a Tesla employee was “sideswiped;” (b) “no one was even
injured;” and (c) any vehicle “could kill someone with 6 inches of
difference.” (1 AA 77 [Musk Decl., Ex. B, Musk 8/7/19 email at 5:p.m.]; 1 AA 79 [Musk Decl., Ex. C, Greenspan 8/7/19 email at 6:p.m.].) The factual basis is all in the published email exchange, and
it is all true.
Document received by the CA 1st District Court of Appeal.
2020) 445 F. Supp. 3d 1042, 1053 [“[W]hen a publisher accuratelyPage 51 The lower court’s finding that Hothi had met his burden of
establishing a probability that he will prove the falsity of Musk’s
statement was based solely on the grounds that “Plaintiff allegedly
injured the security officer at the Tesla Fremont factory, but the
subject statements accuse Plaintiff of almost killing multiple Tesla
employees.” (8 AA 832 [1/27/21 Order at p. 4].)
However, the trial court’s finding ignores the next line of the
people,” and Greenspan’s accompanying email reinforces that it was
one “person” who was sideswiped. (1 AA 77 [Musk Decl. Ex. B,
Musk 8/7/19 email at 5:46 p.m.]; 1 AA 79 [Musk Decl., Ex. C,
Greenspan 8/7/19 email at 6:17 p.m.].)
Again, all relevant facts
forming Musk’s opinion were disclosed. Moreover, it is undisputed
that there was another Tesla employee in the immediate vicinity
when Hothi struck James. (1 AA 85 [James Decl. p. 1].)
But more importantly, whether one or more people were at
risk ultimately does not make any difference to whether Musk
defamed Hothi. Failing to be precise does not make a statement
Document received by the CA 1st District Court of Appeal.
email, in which Musk makes it clear that Hothi “hit one of ourPage 52 defamatory.
(Jackson v. Paramount Pictures Corp. (1998)
Cal.App.4th 10, 26 (Jackson) [“[I]t is sufficient if the substance of the
[statement] be proved true, irrespective of slight inaccuracy in the
details. Minor inaccuracies do not amount to falsity so long as the
substance, the gist, the sting, of the libelous [statement] be
justified.”]; Carver v. Bonds (2005) 135 Cal.App.4th 328, 344-45 [“[A]
statement is not considered false unless it would have a different
have produced.”].)
***
A reasonable person reading this exchange would not
conclude that Musk’s statement was anything other than an opinion
based on Hothi’s actions or that Hothi had actually killed or caused
serious injury to anyone.11 As a result, it is not defamatory. (See
Overstock, supra, 151 Cal.App.4th at 701 [courts must analyze
At worst, Musk’s statements constituted hyperbole or
“language used in a loose, figurative sense,” which is also protected.
(Gilbert, supra, 147 Cal.App.4th at 27.)
Document received by the CA 1st District Court of Appeal.
effect on the mind of the reader from that which the truth wouldPage 53 statement in context and “examine the nature and full content of the
particular communication.”].)
B.
Hothi Did Not Establish That Musk’s Statements
Were Made with Malice.
In order to prevail on this motion, Hothi must also
demonstrate by “clear and convincing evidence” that Musk’s
statements were made with “actual malice”—that Musk made
the truth. (Conroy v. Spitzer (1999) 70 Cal.App.4th 1446, 1451-52.)
Hothi can only meet his burden by “introducing sufficient facts to
establish a prima facie case of actual malice; in other words, []he
must establish a reasonable probability that []he can produce clear
and convincing evidence showing that the statements were made
with actual malice.”
(Young v. CBS Broad., Inc. (2012)
Cal.App.4th 551, 563 (Young), citations omitted.) Failure to present
evidence of actual malice is “a frequent basis for dismissal using the
anti-SLAPP statute.” (Anti-SLAPP Litigation § 5:10 [citing Annette
Document received by the CA 1st District Court of Appeal.
statements knowing they were false or with reckless disregard forPage 54 F., supra, 119 Cal.App.4th at 1162-1172]; see Cabrera v. Alam (2011) Cal.App.4th 1077, 1092; Young, supra, 212 Cal.App.4th at 562-66.)
1.
The Constitutional Framework for Limited
Public Figure Plaintiffs.
To protect public debate and guard against the chilling effect
of litigation, the First Amendment requires that public figures prove
a statement is made with “actual malice.” (See N.Y. Times Co. v.
Sullivan (1964) 376 U.S. 254, 280; see also Gertz v. Robert Welch, Inc.
Claims brought by “limited
purpose” public figures—persons like Hothi who inject themselves
into a public controversy and “become[] public figure[s] for a
limited range of issues” related to that controversy—are also subject
to the “actual malice” standard. (Id. at 351.) “A person becomes a
limited public figure by injecting himself into the public debate
about a topic that concerns a substantial number of people. Once he
places himself in the spotlight on a topic of public interest, his
private words and conduct relating to that topic become fair game.”
(Gilbert, supra, 147 Cal.App.4th at 25, emphasis added.)
Document received by the CA 1st District Court of Appeal.
(1974) 418 U.S. 323, 334 (Gertz).)Page 55 A plaintiff is a limited purpose public figure and subject to the
actual malice standard where, as here: (1) there is a public
controversy; (2) the plaintiff voluntarily injects himself into and/or
seeks to influence the resolution of the public controversy; and (3)
the alleged defamatory statement is “germane” to the plaintiff’s
participation in the controversy. (See Copp, supra, 45 Cal.App.4th
846.) Determining whether a plaintiff is a limited purpose public
controversy and is a question of law that must be resolved by the
Court. (See Reader’s Digest Assn. v. Superior Court (1984) 37 Cal.3d
244, 255 (Reader’s Digest); see also Khawar v. Globe Int’l, Inc. (1998) Cal.4th 254, 264.)
2.
Because Hothi Is a Limited Purpose Public
Figure, the Actual Malice Standard Applies
Here.
(a) There Were Public Controversies Concerning Tesla and
Tesla’s Critics. As described above, there were ongoing public
debates regarding Tesla’s claims about its manufacturing and
technology, Tesla’s treatment of its critics, and the $TSLAQ
conspiracy against the company. (See, supra, Sections I(B)(1)(i)-(iii).)
Document received by the CA 1st District Court of Appeal.
figure requires an analysis of the totality of the circumstances of thePage 56 These issues constitute “a dispute that [had] received public
attention because its ramifications will be felt by persons who are
not direct participants.” (Annette F., supra, 119 Cal.App.4th at 1164,
[citing Waldbaum v. Fairchild Publ’ns, Inc. (D.C. Cir. 1980) 627 F.2d
1287, 1297 (Waldbaum)].)
“Because the issue was being debated
publicly and if it had foreseeable and substantial ramifications for
nonparticipants, it was a public controversy.” (Annette F., supra,
consider “if the press was covering the debate, reporting what
people were saying and uncovering facts and theories to help the
public formulate some judgment,” and should not “question the
legitimacy of the public’s concern” or substitute its judgment of
newsworthiness, but should instead “look to what already were
disputes.”].)
As Hothi admitted, these issues “plainly ha[ve]
ramifications far beyond [Hothi] . . . .” (5 AA 408:18-19 [RJN, Ex. I,
Request to Continue, p. 2].)
(b) Hothi voluntarily injected himself into controversies
regarding Tesla. There could not be a clearer example of someone
Document received by the CA 1st District Court of Appeal.
Cal.App.4th at 1164; see also Waldbaum, supra, 627 F.2d at 1297 [courtsPage 57 voluntarily injecting himself into a public debate. Hothi surveilled
Tesla employees, entered Tesla property, and was constantly posting
about his “findings.”
(See, supra, Sections A-B.)
Hothi himself
admits that he “came to prominence during 2018” for his Twitter
posts about Tesla, that he gained 10,000 followers on Twitter, and
that he “became part of the media discussion about Tesla’s [alleged]
production problems.” (3 AA 291:4-18 [Hothi 8/12/19 Decl., ¶¶ 5, 6,
Hothi plainly had “undertaken some voluntary act through
which he seeks to influence the resolution of the public issues
involved,” and indeed has broadcast his intent to “influence the
resolution” to the world via Twitter.
(Reader’s Digest, supra,
Cal.3d at 254 [defining limited purpose public figure].) It is not
necessary to show that Hothi “actually achieves prominence in the
public debate; it is sufficient that [a plaintiff] attempts to thrust
himself into the public eye [] or to influence a public decision.”
(Copp,
supra,
Cal.App.4th at 845–46, citations
omitted.)
Document received by the CA 1st District Court of Appeal.
emphasis added].)Page 58 Regardless, Hothi did achieve such prominence, as he recognizes. (AA 291:4-18 [Hothi 8/12/19 Decl., ¶¶ 5, 6].)
(c) Musk’s statements are germane to Hothi’s role in the
controversy. The trial court found that Tesla had not shown that
Musk’s statements were “germane” to the public controversies
because they “do not concern Plaintiff’s opinion on the operations of
Tesla . . . .” (8 AA 832 [1/27/21 Order at p. 4].) This was incorrect for
First, the trial court’s legal standard (requiring that Musk’s
statements be about Tesla’s operations) is too restrictive.
A
statement made in discussing a public controversy is germane
unless it is “wholly unrelated” to that controversy.
(Waldbaum,
supra, 627 F.2d at 1298; Jankovic v. Int'l Crisis Grp. (D.C. Cir. 2016) F.3d 576, 589 (Jankovic) [same]; Black's Law Dictionary (11th ed.
2019) [defining “germane” as “relevant” or “pertinent”].)
Moreover, a statement is germane if it is about “plaintiff’s
participation in the controversy;” it does not have to be focused only
on the underlying controversy. (See Copp, supra, 45 Cal.App.4th at
Document received by the CA 1st District Court of Appeal.
several reasons.Page 59 846, emphasis added; see also Makaeff v. Trump Univ., LLC (9th Cir.
2013) 715 F.3d 254, 266 [defining germaneness as “whether the
alleged defamation is related to the plaintiff’s participation in the
controversy”], emphasis added; Jankovic, supra, 822 F.3d at 589 [“The
germaneness test is met because the defamatory statement relates to
the individual's role in the public controversy.”].)
Second, Musk’s statements were not “wholly unrelated” to the
in the public debates about Tesla and Musk. As described above,
Musk’s statements were related to Hothi’s improper methods for
obtaining the supposed “information” he was disseminating to the
public, including by harassing Tesla employees. (See, supra, Section
I(B)(2); Copp, supra, 45 Cal.App.4th at 846 [statements about plaintiff
“were germane to the public controversy [because] [t]he public
needed to know whether there was reason to listen to him”];
Waldbaum, supra, 627 F.2d at 1298 [holding that statements about
plaintiff were germane to controversy because it “could have been
relevant to the public’s decision whether to listen to him”].)
Document received by the CA 1st District Court of Appeal.
controversy, and they were directly concerning Hothi’s participationPage 60 Third, Musk’s statements were related to the public debate
about the treatment of Tesla’s critics, including Hothi. Musk was
defending himself and Tesla from Greenspan’s assertions on this
topic, pointing out that Tesla had not “mistreated” anyone and that
instead it was Hothi who had acted improperly. (See, supra, Section
I(B)(2); Ampex, supra, 128 Cal.App.4th at 1578 [finding statements
were germane to controversy where defendant’s comments were
Finally, Musk’s statements were related to the conduct of the
$TSLAQ group. As a member of that group, and by his own accord,
Hothi’s actions furthered $TSLAQ ‘s publicly-stated goals to harm
the company and send Musk to jail. (See, supra, Section I(B)(2); See
Copp, supra, 45 Cal.App.4th at 846 [plaintiff’s participation in
controversy germane].)
***
Because (a) there was a public controversy; (b) Hothi inserted
himself into that debate; and (c) Musk’s statements were germane,
Document received by the CA 1st District Court of Appeal.
counter to plaintiff’s version of events].)Page 61 Hothi is a limited purpose public figure and the actual malice
standard applies to Musk’s email.
C.
Hothi Did Not Establish that Musk Acted with
Malice.
1.
Hothi Did Not Present Any Evidence
Contradicting Musk’s Prima Facie Showing.
Actual malice . . . requires at a minimum that the
statements were made with a reckless disregard
for the truth. And although the concept of
reckless disregard cannot be fully encompassed
in one infallible definition, we have made clear
that the defendant must have made the false
publication with a high degree of awareness of . .
. probable falsity, or must have ‘entertained
serious doubts as to the truth of his publication.’
(212 Cal.App.4th at 562–63, citations omitted; see also St. Amant v.
Thompson (1968) 390 U.S. 727, 731-32 [establishing actual malice
requires “sufficient evidence to permit the conclusion that the
defendant in fact entertained serious doubts as to the truth of his
publication.”], emphasis added.)
There cannot be a finding of actual malice “‘[w]here the
[allegedly defamatory information] comes from a known reliable
Document received by the CA 1st District Court of Appeal.
As the Court of Appeal held in Young v. CBS Broad., Inc.:Page 62 source and there is nothing in the circumstances to suggest
inaccuracy.” (Reader’s Digest, supra, 37 Cal.3d at 259; Jackson, supra,
68 Cal.App.4th at 26 [statement made “on the basis of information
provided by a single reliable source precludes a finding of actual
malice”]; Christian Research Inst. v. Alnor (2007) 148 Cal.App.4th 71,
91 (Christian Research) [no actual malice where information was
purportedly obtained from an effectively anonymous source in the
Musk based his statements on reports he had received from
Tesla employees that Hothi was harassing Tesla employees, and had
sideswiped one. (1 AA 69:9-18, 69:25-70:12 [Musk Decl., ¶¶ 4-5, 7].)
Hothi did not present any evidence that Musk’s reliance on such
information was unreasonable, and Musk had no obligation to
investigate the reports further. These facts preclude a finding of
malice. (See Reader's Digest, supra, 37 Cal.3d at 259.)
But Musk had even more reason to trust the reliability of the
sources reporting on Hothi’s harassment and striking a Tesla
employee with his car—prior to Musk’s email to Greenspan, those
Document received by the CA 1st District Court of Appeal.
postal inspector’s office].)Page 63 same sources had filed a police report and had provided sworn
declarations under oath regarding Hothi’s harassment and the
February 21, 2019 incident, on which Musk relied. (2 AA 215-[RJN, Ex. B, TRO Petition].)
As such, Musk’s statements were not “patently completely at
odds with the actual events,” (Walker v. Kiousis (2001) 93 Cal.App.4th
1432, 1446), “fabricated by the defendant,” or “so inherently
circulation,” (Annette F., supra, 119 Cal.App.4th at 1170), so as to
demonstrate that Musk made them with malice.2.
The Court Erred in Finding Malice Based Solely
on Musk’s Alleged Dislike of Hothi.
In addition, even false statements that have “some element
of truth to them” do not rise to the level of malice. (Annette F., supra,
119 Cal.App.4th at 1170 [no malice found based on incorrect
statement that plaintiff had been “convicted” of domestic violence
because family court found that she had engaged in violence; “[a]t
the most, [there was a] speculative possibility that [defendant] might
have known or suspected that her use of the word convicted was
technically incorrect. Such a speculative possibility falls short of
clear and convincing evidence.”].)
Document received by the CA 1st District Court of Appeal.
improbable that only a reckless man would have put them inPage 64 Hothi’s argument below, which the trial court adopted, was
that Hothi had presented sufficient evidence of malice based on
“showing that the publication was motivated by hatred or ill will
towards the plaintiff.”
(7 AA 634:3-23 [Opp. at 15]; 8 AA
[1/27/21 Order at p. 4] [citing only to Tesla’s TRO application,
Musk’s unrelated Twitter post of an Internet meme the same day as
the TRO filing (which Hothi speculates was about him), and
theorist”].)
However, the Constitutional malice standard, which Hothi
must meet here, is different and requires that he show Musk “made
the objectionable statement with malice in its constitutional sense,
that is, with knowledge that it was false or with reckless disregard of
whether it was false or not. The test is a subjective test, under which
the defendant’s actual belief concerning the truthfulness of the
publication is the crucial issue. This test directs attention to the
defendant's attitude toward the truth or falsity of the material
published, not the defendant's attitude toward the plaintiff.”
Document received by the CA 1st District Court of Appeal.
statements in Musk’s motion that Hothi was a “conspiracyPage 65 (McGarry v. Univ. of San Diego (2007) 154 Cal.App.4th 97, 114,
emphasis added, quotations omitted; Edwards v. Hall (1991) Cal.App.3d 886, 900 [“[W]e shall use the term ‘constitutional malice’
instead of ‘actual malice’ so as to avoid the misplaced notion . . . that
a showing of spite or ill will may satisfy a public figure plaintiff’s
burden of proof.”]; Kashian v. Harriman (2002) 98 Cal.App.4th 892,
915 [“constitutional malice may not be inferred solely from evidence
supra, 119 Cal.App.4th at 1168 [“actual malice may not be inferred
solely from evidence of personal spite, ill will, or bad motive”].)
Here, Hothi cited no evidence to meet the (correct) standard
which required that Musk knew his statements were false or had a
reckless disregard for the truth. Musk relied on employee reports
and the sworn statements of Tesla employees. That is enough to
establish a lack of malice, and Hothi provided no contrary evidence.
(See, e.g., Reader’s Digest, supra, 37 Cal.3d. at 259; Christian Research,
supra, 148 Cal.App.4th at 91.)
***
Document received by the CA 1st District Court of Appeal.
of hatred, spite, ill will, or desire to injure the plaintiff”]; Annette F.,Page 66 Because Hothi was a limited purpose public figure, he had to
establish a probability that he would prove with clear and
convincing evidence that Musk made his statements with actual
malice. Hothi provided no such evidence, and, as a result, the trial
court should have granted Musk’s special motion to strike.
III.
MUSK IS ENTITLED TO HIS ATTORNEYS’ FEES.
“The anti-SLAPP statute requires an award of attorney fees to a
Cal.App.4th 659, 685, emphasis in original; see Cal. Code Civ. Proc.
§ 425.16(c) [“a prevailing defendant on a special motion to strike
shall be entitled to recover his or her attorney’s fees and costs”].)
The fees to which a prevailing defendant is entitled include fees and
costs incurred on appeal. (City of Alhambra v. D’Ausilio (2011) Cal.App.4th 1301, 1309 [“The right to attorney fees extends to
attorney fees on appeal as well.”], internal quotations and citation
omitted; Dove Audio, Inc. v. Rosenfeld, Meyer & Susman (1996) Cal.App.4th 777, 785 [same].)
Accordingly, Musk respectfully requests that the Court
Document received by the CA 1st District Court of Appeal.
prevailing defendant.” (Paulus v. Bob Lynch Ford, Inc. (2006) 139Page 67 instruct the trial court to award Musk the attorneys’ fees he has
incurred in defending this action, both below and on this appeal.
(Paiva v. Nichols (2008) 168 Cal.App.4th 1007, 1038 [remanding
matter to trial court “to enter an order granting the motions to strike,
and to conduct proceedings as appropriate to determine costs and
reasonable attorney fees, including attorney fees on appeal, to be
awarded to appellants”].)
Musk respectfully requests that the Court reverse the trial
court’s order denying Musk’s special motion to strike and remand
with instructions that the trial court grant the motion to strike,
dismiss Hothi’s Complaint with prejudice, and award Musk the
attorneys’ fees he has incurred in defending this action.
Document received by the CA 1st District Court of Appeal.
ConclusionPage 68 Respectfully submitted,
ALEX SPIRO
(pro hac vice admission pending)
MICHAEL T. LIFRAK
QUINN EMANUEL URQUHART
& SULLIVAN, LLP
865 S. Figuero St., 10th Floor
Los Angeles, CA Telephone: (213) 443-Facsimile: (213) 443-alexspiro@quinnemanuel.com
michaellifrak@quinnemanuel.com
Counsel for Defendant-Appellant Elon Musk
Document received by the CA 1st District Court of Appeal.
Dated: June 10, 2021Page 69 CERTIFICATE OF COMPLIANCE WITH RULE 8.
I certify that, pursuant to California Rule of Court 8.204, the
attached Appellant’s Brief contains 10,515 words, as determined by a
computer word count.
Respectfully submitted,
ALEX SPIRO
(pro hac vice admission pending)
MICHAEL T. LIFRAK
QUINN EMANUEL URQUHART
& SULLIVAN, LLP
865 S. Figuero St., 10th Floor
Los Angeles, CA Telephone: (213) 443-Facsimile: (213) 443-alexspiro@quinnemanuel.com
michaellifrak@quinnemanuel.com
Counsel for Defendant-Appellant Elon Musk.
Document received by the CA 1st District Court of Appeal.
Dated: June 10, 2021Page 70 DECLARATION OF SERVICE
STATE OF CALIFORNIA, COUNTY OF LOS ANGELES
At the time of service, I was over 18 years of age and not a
party to this action. I am employed in the County of Los Angeles,
State of California. My business address is 865 South Figueroa Street,
10th Floor, Los Angeles, CA 90017-2543.
Lawrence J. Fossi
25 Hawthorn Lane
Bozeman, MT Lawrence.fossi@outlook.com
Law Office of D. Gill Sperlein
345 Grove Street
San Francisco, CA gill@sperleinlaw.com
BY ELECTRONIC MAIL TRANSMISSION: By electronic mail
transmission from jeaninezalduendo@quinnemanuel.com on June
10, 2021 by transmitting a PDF format copy of such documents to
counsel for the parties at the e-mail address listed above, per
agreement between the parties regarding electronic mail service.
The documents were transmitted by electronic transmission and
such transmission was reported as complete and without error.
BY TRUE FILING: By the Court’s True Filing system.
I declare under penalty of perjury under the laws of the State
of California that the foregoing is true and correct.
Executed on June 10, 2021, at Los Angeles, California.
Jeanine Zalduendo
Document received by the CA 1st District Court of Appeal.
On June 10, 2021, I served true copies of the following
document(s) described as APPELLANT’S OPENING BRIEF on the
interested parties in this action as follows:
PDF Page 1
PlainSite Cover Page
PDF Page 2
No. A162400
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT, DIVISION ONE
RANDEEP HOTHI,
Plaintiff-Respondent,
v.
ELON MUSK
On Appeal from the Superior Court for the County of Alameda
Hon. Julia Spain, Judge,
Case No. RG20069852
APPELLANT’S OPENING BRIEF
ALEX SPIRO
(pro hac vice admission
pending)
QUINN EMANUEL URQUHART
& SULLIVAN, LLP
51 Madison Avenue, 22nd Floor
New York, NY 10010
Telephone: (212) 849-7000
Facsimile: (212) 849-7100
alexspiro@quinnemanuel.com
MICHAEL T. LIFRAK
(S.B. No. 210846)
JEANINE ZALDUENDO
(S.B. No. 243374)
QUINN EMANUEL URQUHART
& SULLIVAN, LLP
865 S. Figueroa Street, 10th Fl.
Los Angeles, CA 90017
Telephone: (213) 443-3000
Facsimile: (212) 443-3100
michaellifrak@quinnemanuel.com
Counsel for Defendant-Appellant Elon Musk
Document received by the CA 1st District Court of Appeal.
Defendant-Appellant.
PDF Page 3
CERTIFICATE OF INTERESTED ENTITIES OR PERSONS
Pursuant to California Rules of Court, rule 8.208, CrossDefendant and Appellant Elon Musk hereby submits the following
certificate of interested entities or persons:
1.
Elon Musk knows of no other entity or person that has a
financial or other interest in the outcome of the proceeding that they
reasonably believe the Justices should consider in determining
8.208(e)(2).
Dated: June 10, 2021
Alex Spiro
Michael T. Lifrak
2
Document received by the CA 1st District Court of Appeal.
whether to disqualify them under California Rules of Court, rule
PDF Page 4
TABLE OF CONTENTS
Page
INTRODUCTION ....................................................................................... 9
STATEMENT OF FACTS ........................................................................ 13
A.
Hothi’s Rise to Prominence as a Tesla Critic. ................. 13
B.
Hothi’s Harassment of Tesla. ............................................ 15
C.
Hothi’s Sideswipes a Tesla Employee. ............................ 17
D.
Tesla’s Restraining Order Proceedings Against
Hothi. .................................................................................... 19
E.
Musk’s Emails to Greenspan. ........................................... 20
F.
Hothi’s Lawsuit and Musk’s Motion to Strike. .............. 22
STANDARD OF REVIEW ....................................................................... 24
ARGUMENT ............................................................................................. 25
I.
THE ANTI-SLAPP STATUTE APPLIES TO HOTHI’S
CLAIM FOR DEFAMATION AGAINST MUSK. ..................... 25
A.
The Anti-SLAPP Statute Applies to Any Act in
Furtherance of a Person’s Exercise of Free Speech
on a Public Issue. ................................................................ 25
B.
Hothi’s Claims Arise from Musk’s Speech on
Several Issues of Public Interest. ...................................... 28
C.
1.
The Actions of Tesla, Musk, and the
$TSLAQ Group Are Matters of Public
Interest. ..................................................................... 29
2.
Musk’s Statements Related Directly to the
Issues of Public Interest. ......................................... 33
Hothi’s Claim Also Arises from Musk’s Speech
About Issues that Were Pending Before The
Court. .................................................................................... 37
3
Document received by the CA 1st District Court of Appeal.
STATEMENT OF APPEALABILITY ..................................................... 24
PDF Page 5
2.
The Challenged Statements Related to the
Ongoing Injunction Proceeding. ........................... 39
3.
The Challenged Statements Related to
Hothi’s Threatened Case Against Musk. ............. 41
HOTHI DID NOT DEMONSTRATE A PROBABILITY
OF PREVAILING........................................................................... 42
A.
B.
C.
III.
The Anti-SLAPP Statute Protects Speech
About Pending or Threatened Cases.................... 37
Hothi Did Not Establish Falsity. ...................................... 43
1.
The Applicable Law Concerning Falsity. ............ 43
2.
The Challenged Statements Were True. .............. 44
Hothi Did Not Establish That Musk’s Statements
Were Made with Malice. ................................................... 53
1.
The Constitutional Framework for Limited
Public Figure Plaintiffs. .......................................... 54
2.
Because Hothi Is a Limited Purpose Public
Figure, the Actual Malice Standard Applies
Here. .......................................................................... 55
Hothi Did Not Establish that Musk Acted with
Malice. .................................................................................. 61
1.
Hothi Did Not Present Any Evidence
Contradicting
Musk’s
Prima
Facie
Showing. ................................................................... 61
2.
The Court Erred in Finding Malice Based
Solely on Musk’s Alleged Dislike of Hothi. ........ 63
MUSK IS ENTITLED TO HIS ATTORNEYS’ FEES. ................ 66
CONCLUSION ......................................................................................... 67
4
Document received by the CA 1st District Court of Appeal.
II.
1.
PDF Page 6
TABLE OF AUTHORITIES
Page
CASES
Ampex Corp. v. Cargle
(2005) 128 Cal.App.4th 1569 ....................................... 30, 32, 33, 60
Annette F. v. Sharon S.
(2004) 119 Cal.App.4th 1146 ........................... 38, 40, 53, 56, 63, 65
Argentieri v. Zuckerberg
(2017) 8 Cal.App.5th 768 ............................................................... 39
Briggs v. Eden Council for Hope & Opportunity
(1999) 19 Cal.4th 1106 .................................................................... 38
Cabrera v. Alam
(2011) 197 Cal.App.4th 1077 ......................................................... 54
Cal. Pub. Emp. Ret. System v. Moody’s Inv’rs Serv., Inc.
(2014) 226 Cal.App.4th 643 ........................................................... 30
Canaday v. Peoples-Perry
(N.D. Cal. Dec. 15, 2017) 2017 WL 6405618................................ 41
Carver v. Bonds
(2005) 135 Cal.App.4th 328 ........................................................... 52
Christian Research Inst. v. Alnor
(2007) 148 Cal.App.4th 71 ....................................................... 62, 65
City of Alhambra v. D’Ausilio
(2011) 193 Cal.App.4th 1301 ......................................................... 66
Conroy v. Spitzer
(1999) 70 Cal.App.4th 1446 ........................................................... 53
Copp v. Paxton
(1996) 45 Cal.App.4th 829 ............................... 35, 55, 57, 58, 59, 60
Dove Audio, Inc. v. Rosenfeld, Meyer & Susman
(1996) 47 Cal.App.4th 777 ............................................................. 66
Dyer v. Childress
(2007) 147 Cal.App.4th 1273 ......................................................... 28
5
Document received by the CA 1st District Court of Appeal.
Cabral v. Martins
(2009) 177 Cal.App.4th 471 ........................................................... 25
PDF Page 7
Edwards v. Hall
(1991) 234 Cal.App.3d 886 ............................................................ 65
FilmOn.com Inc. v. DoubleVerify Inc.
(2019) 7 Cal.5th 133 ................................................ 29, 33, 34, 35, 37
Gertz v. Robert Welch, Inc.
(1974) 418 U.S. 323 ......................................................................... 54
GetFugu, Inc. v. Patton Boggs LLP
(2013) 220 Cal.App.4th 141 ........................................................... 30
Gilbert v. Sykes
(2007) 147 Cal.App.4th 13 ............................... 33, 43, 44, 48, 52, 54
Gotterba v. Travolta
(2014) 228 Cal.App.4th 35 ............................................................. 41
Haight Ashbury Free Clinics, Inc. v. Happening House Ventures
(2010) 184 Cal.App.4th 1539 ......................................................... 26
Hall v. Time Warner, Inc.
(2007) 153 Cal.App.4th 1337 ......................................................... 30
Herring Networks, Inc. v. Maddow
(S.D. Cal. 2020) 445 F.Supp. 3d 1042 ........................................... 50
Jackson v. Mayweather
(2017) 10 Cal.App.5th 1240 ........................................................... 30
Jackson v. Paramount Pictures Corp.
(1998) 68 Cal.App.4th 10 ......................................................... 52, 62
Jankovic v. Int’l Crisis Grp.
(D.C. Cir. 2016) 822 F.3d 576 .................................................. 58, 59
Kashian v. Harriman
(2002) 98 Cal.App.4th 892 ............................................................. 65
Khawar v. Globe Int’l, Inc.
(1998) 19 Cal.4th 254 ...................................................................... 55
Letter Carriers v. Austin
(1974) 418 U.S. 264 ......................................................................... 43
Lincoln Unified Sch. Dist. v. Superior Court
(2020) 45 Cal.App.5th 1079 ........................................................... 46
Mackey v. Bd. of Trs. of California State Univ.
(2019) 31 Cal.App.5th 640 ............................................................. 49
6
Document received by the CA 1st District Court of Appeal.
Hailstone v. Martinez
(2008) 169 Cal.App.4th 728 ........................................................... 28
PDF Page 8
Makaeff v. Trump Univ., LLC
(9th Cir. 2013) 715 F.3d 254 .......................................................... 59
McGarry v. Univ. of San Diego
(2007) 154 Cal.App.4th 97 ............................................................. 65
Monterey Plaza Hotel v. Hotel Emps. & Rest. Emps.
(1999) 69 Cal.App.4th 1057 ........................................................... 43
Moyer v. Amador Valley J. Union High Sch. Dist.
(1990) 225 Cal.App.3d 720 ............................................................ 47
N.Y. Times Co. v. Sullivan
(1964) 376 U.S. 254 ......................................................................... 54
Neville v. Chudacoff
(2008) 160 Cal.App.4th 1255 ........................... 26, 27, 38, 39, 41, 42
Nygård, Inc. v. Uusi-Kerttula
(2008) 159 Cal.App.4th 1027 ................................. 29, 30, 32, 33, 44
Overstock.com, Inc. v. Gradient Analytics, Inc.
(2007) 151 Cal.App.4th 688 ..................................................... 49, 52
Paiva v. Nichols
(2008) 168 Cal.App.4th 1007 ......................................................... 67
Paulus v. Bob Lynch Ford, Inc.
(2006) 139 Cal.App.4th 659 ........................................................... 66
Premier Med. Mgmt. Sys. v. Cal. Ins. Guarantee Ass’n
(2006) 136 Cal.App.4th 464 ........................................................... 27
Reader’s Digest Assn. v. Superior Court
(1984) 37 Cal.3d 244 ..................................................... 55, 57, 62, 65
Rearden LLC v. Rearden Commerce, Inc.
(N.D. Cal. 2009) 597 F.Supp.2d 1006 ........................................... 13
Rosenaur v. Scherer
(2001) 88 Cal.App.4th 260 ............................................................. 47
Ruiz v. Harbor View Cmty. Ass’n
(2006) 134 Cal.App.4th 1456 ................................................... 44, 46
Seltzer v. Barnes
(2010) 182 Cal.App.4th 953 ........................................................... 38
Sierra Club v. Superior Court
(2013) 57 Cal.4th 157 ...................................................................... 46
7
Document received by the CA 1st District Court of Appeal.
Overhill Farms, Inc. v. Lopez
(2010) 190 Cal.App.4th 1248 ......................................................... 50
PDF Page 9
Simmons v. Allstate Ins. Co.
(2001) 92 Cal.App.4th 1068 ..................................................... 27, 42
St. Amant v. Thompson
(1968) 390 U.S. 727 ......................................................................... 61
Standing Comm. v. Yagman
(9th Cir. 1995) 55 F.3d 1430 .......................................................... 50
Summerfield v. Randolph
(2011) 201 Cal.App.4th 127 ........................................................... 38
Summit Bank v. Rogers
(2012) 206 Cal.App.4th 669 ........................................................... 46
Sweetwater Union High Sch. Dist. v. Gilbane Bldg. Co.
(2019) 6 Cal.5th 931 ........................................................................ 14
Tuszynska v. Cunningham
(2011) 199 Cal.App.4th 257 ........................................................... 24
Walker v. Kiousis
(2001) 93 Cal.App.4th 1432 ........................................................... 63
Young v. CBS Broad., Inc.
(2012) 212 Cal.App.4th 551 ............................................... 53, 54, 61
STATUTORY AUTHORITIES
Code Civ. Proc. § 425.16 .................................................. 22, 24, 25, 26, 38
Code Civ. Proc. § 425.16(a) ...................................................................... 26
Code Civ. Proc. § 425.16(b)(1) ........................................................... 26, 43
Code Civ. Proc. § 425.16(c) ...................................................................... 66
Code Civ. Proc. § 425.16(e)(2) ..................................................... 37, 41, 42
Code Civ. Proc. § 425.16(e)(4) ................................................................. 28
Code Civ. Proc. § 425.16(i) ....................................................................... 24
Evid. Code § 451(e) ................................................................................... 46
Evid. Code §§ 1552, 1553 ......................................................................... 14
ADDITIONAL AUTHORITIES
Black's Law Dictionary (11th ed. 2019) .................................................. 58
8
Document received by the CA 1st District Court of Appeal.
Waldbaum v. Fairchild Publ’ns, Inc.
(D.C. Cir. 1980) 627 F.2d 1287 .......................................... 56, 58, 59
PDF Page 10
INTRODUCTION
A prominent critic of a public company and its CEO makes
numerous claims online about the company and its technology. The
CEO responds by stating true facts about actions taken by the critic
against the company and his opinions based on those facts. The
critic sues, claiming defamation.
The anti-SLAPP statute was
designed to prevent such a claim. The lower court erred by denying
the anti-SLAPP statute did not provide protection to the CEO’s
speech, that the CEO’s statements were defamatory because he used
the plural form of a word instead of the singular, and that the critic
had met his burden of proving Constitutional malice based solely on
the CEO’s alleged dislike of the critic.
Plaintiff/Respondent Randeep Hothi (“Hothi”) is a selfdescribed “citizen journalist” who, in his own words, “came to
prominence” as an online critic of Tesla’s manufacturing and
technology.
He also boasts of being a member of the so-called
“$TSLAQ” group whose goal is to destroy Tesla and which has been
the subject of extensive press attention. (See, infra, Section A.)
9
Document received by the CA 1st District Court of Appeal.
the CEO’s motion to strike and by finding, among other things, that
PDF Page 11
In April 2019, Tesla obtained a temporary restraining order
against Hothi based on facts that remain undisputed to this day: (a)
Hothi placed remote cameras on Tesla property to film Tesla
employees and activities at its factory; (b) Hothi followed and filmed
Tesla employees who were operating a test car on the freeway and
roads; (c) Hothi visited a Tesla factory without invitation on
numerous occasions; and (d) a Tesla security employee reported
Tesla’s factory parking lot. (See, infra, Sections B-D.)
In August 2019, Tesla’s CEO, Defendant/Appellant Elon Musk
(“Musk”) was engaged in a series of emails with the operator of a
website that posts about Tesla, other companies, and the legal
system. In one of those emails, the website operator raised Hothi’s
assertions about Tesla and the company’s treatment of its “critics,”
including Hothi. In response, Musk stated what he believed to be
(and was) the truth.
Hothi had harassed Tesla employees and
“sideswipe[d]” a Tesla employee with his car, which Musk noted
could have been deadly with six inches of difference. The website
10
Document received by the CA 1st District Court of Appeal.
being struck by Hothi’s vehicle after catching him trespassing in
PDF Page 12
operator published the email exchange online. That is the entire
basis of Hothi’s defamation claim against Musk. (See, infra, Sections
E-F.)
Musk’s statements fall within the protection of the anti-SLAPP
statute. They related to issues of public interest, including Hothi’s
public assertions about Tesla’s operations, Tesla’s alleged treatment
of its critics, and the “$TSLAQ” conspiracy against the company.
restrictive test that Musk’s comments needed to be directly about
Tesla, not Hothi’s actions against the company, in order to
contribute to the debate on an issue of public importance. 1 (See,
infra, Section I(B).)
In terms of Hothi’s burden to establish he will likely prevail,
he cannot do so where the factual statements in Musk’s email were
true, and the rest of the statements were his opinions based on those
Musk’s comments were also directly related to issues in the
still-ongoing TRO action brought by Tesla against Hothi and to new
claims that Hothi had already threatened to bring against Musk,
which provide a separate ground for anti-SLAPP protection. (See,
infra, Section I(C).)
1
11
Document received by the CA 1st District Court of Appeal.
The lower court erred in finding otherwise, imposing an unduly
PDF Page 13
facts. The trial court erred by concluding it was likely that Musk’s
statements were false and defamatory, based solely on the notion
that he stated that Hothi put Tesla employees (plural) at risk, when
it was only one. (See, infra, Section II(A).)
And even if the statements were false (they were not), there
was zero evidence proffered by Hothi—never mind the required
clear and convincing evidence—that Musk knew his statements
“actual” or “constitutional” malice).
This is because Musk’s
statements were based on the reports of his employees who made
sworn statements about what had happened. The trial court erred in
finding that Hothi had met his burden on malice by pointing to
evidence that Musk disliked Hothi.
That is the wrong kind of
malice—in a defamation case, the plaintiff must prove actual malice,
which is knowledge of falsity or reckless disregard of the truth.
Hothi did not make any effort to prove that, which alone is
dispositive. (See, infra, Section II(B).)
A plaintiff cannot inject himself into a public debate and then
12
Document received by the CA 1st District Court of Appeal.
were false or made them with reckless disregard for the truth (i.e.,
PDF Page 14
sue for “defamation” when the target of his words and actions
responds with related facts and his own opinions. The trial court’s
order should be vacated, and this matter remanded with
instructions to grant Musk’s anti-SLAPP motion.
STATEMENT OF FACTS
A.
Hothi’s Rise to Prominence as a Tesla Critic.
In 2015, Hothi “developed an interest in Tesla’s business and,
(1 AA 11:21-22
[Hothi’s Verified Complaint (“Compl.”), ¶ 9].) He created a Twitter
account with the handle @skabooshka and often tweeted “his
skepticism” about Tesla’s claims about its production and
technology. (1 AA 11:26-27 [Compl. ¶ 10].) His tweets included
supposed information about Tesla production and technology, as
well as his goal to bankrupt Tesla and have Musk sent to prison. (1
AA 92-130 [Zalduendo Decl. Ex. A].)2
The trial court improperly sustained Hothi’s objections to
the consideration of Hothi’s tweets on authenticity grounds. (8 AA
832 [Order, p. 4].) However, an attorney declaration authenticating
the contents of a website is sufficient. (Rearden LLC v. Rearden
Commerce, Inc. (N.D. Cal. 2009) 597 F.Supp.2d 1006, 1027 [holding it
was “nonsensical proposition that an attorney cannot authenticate a
13
2
Document received by the CA 1st District Court of Appeal.
in particular, its claims about its technology.”
PDF Page 15
Hothi “came to prominence during 2018,” obtained more than
10,000 followers on Twitter, and “became part of the media
discussion about Tesla’s [alleged] production problems.”
(2 AA
166:4-18 [Hothi 8/12/19 Decl., ¶¶ 5, 6].) Hothi was also involved
extensively in public discussions regarding the automation of Tesla’s
Model 3 cars. (1 AA 12:3-26, 13:10-25 [Compl. ¶¶ 11-17, 20-24].)
Hothi is a member of the “so-called $TSLAQ, a wide-ranging
enterprise and who regularly share information on the social media
platform, Twitter” and who seek the downfall of the company. (2
AA 165:22-24 [Hothi 8/12/19 Decl., ¶ 2].)3 As Hothi has noted, the
print-out from a publicly accessible website”]; Evid. Code §§ 1552,
1553 [printouts of digital data presumed accurate].) Moreover, the
California Supreme Court has made clear that a court should
consider evidence at the anti-SLAPP stage as long as “it is
reasonably possible the proffered evidence set out in those
statements will be admissible at trial.” (Sweetwater Union High Sch.
Dist. v. Gilbane Bldg. Co. (2019) 6 Cal.5th 931, 949.) Hothi’s own
tweets would certainly be admissible at trial.
The group’s name ($TSLAQ) refers to what Tesla’s stock
ticker would become if the group successfully drives Tesla into
bankruptcy. The reason the conspirators are attacking Tesla is
because many “short” Tesla’s stock. Short selling is a way for an
investor to make a bet that a company’s stock will decrease in value.
14
3
Document received by the CA 1st District Court of Appeal.
group of people who are skeptical about the Tesla business
PDF Page 16
$TSLAQ group has been featured in a documentary and “in various
newspaper articles, including the Los Angeles Times.”
(2 AA
165:25-27 [Hothi 8/12/19 Decl., ¶ 3].)
B.
Hothi’s Harassment of Tesla.
Hothi has gone to extreme lengths to obtain information about
Tesla, which has led to harassment of Tesla employees. Specifically:
1.
In the spring of 2018, Hothi began regularly publicly
parking lots and logistics lots, which are not open to the public. (1
AA 59 [Leslie Decl., p. 1]; 7 AA 638:9-13 [Hothi 1/11/21 Decl., ¶ 10]
[describing Hothi’s tracking of cars].) A collection of Hothi’s tweets
from July 2018 through April 2019 confirms that he routinely
surveilled the Tesla employee and contractor parking lots, then
posted information online about it. (1 AA 92-130 [Zalduendo Decl.,
The $TSLAQ conspirators make clear they wish to destroy the
company because they stand to profit from its demise. (1 AA 24:5-12
[Musk Verified Answer, ¶¶ 1-2].) Funding for Mr. Hothi’s litigation
has been organized by fellow $TSLAQ member and New York
financier, Laurence Fossi, who both appeared cc’ed on the email
correspondence underlying this defamation action (discussed infra)
15
Document received by the CA 1st District Court of Appeal.
posting photos and videos of the Tesla Fremont factory employee
PDF Page 17
Ex. A].)
2.
In August 2018, Tesla Security found an Arlo portable
camera mounted on a utility pole at the private property of the Tesla
Fremont factory, pointed at Tesla private property. (1 AA 59 [Leslie
Decl., p. 1].) An Arlo customer service representative provided the
registered email for the camera as “skabooshka@protonmail.com,”
which is Hothi’s email address. (Ibid.) In the lower court, Hothi did
Opp.].)
3.
In January 2019, a CamPak portable camera was
discovered inside a utility box in a private parking lot at the Tesla
Fremont factory, pointed at Tesla private property. (1 AA 59 [Leslie
Decl., p. 1].) The camera was examined, photographed, and left in
place. (Ibid.) Tesla security cameras were adjusted to observe the
location. (Ibid.) In January 2019, Hothi’s car was seen in the vicinity,
and Hothi was observed removing the camera (as well as another
camera, also planted on Tesla’s property). (Ibid.) Again, Hothi does
and is also Hothi’s attorney of record here. (Id. at 25:1-2 [Musk
16
Document received by the CA 1st District Court of Appeal.
not dispute that he had placed this camera. (7 AA 616-35 [Hothi
PDF Page 18
not dispute that he planted this camera. (7 AA 616-35 [Hothi Opp.].)
4.
In April 2019, Hothi followed a Tesla test vehicle driven
by Tesla employees on public roads, taking photos and videos for
thirty minutes, which he then posted on Twitter. (7 AA 642:23643:11 [Hothi 1/11/21 Decl., ¶ 35-37].)4
5.
Hothi tried to speak with Tesla employees on numerous
occasions while visiting the factory uninvited. (7 AA 638:9-13 [Hothi
6.
Hothi made numerous phone calls to Tesla employees
to “gather information.” (7 AA 642:11-17 [Hothi 1/11/21 Decl. ¶ 33].)
Tesla employees updated Musk about Hothi’s actions,
including his internet postings regarding Tesla and the finding of his
remote cameras. (1 AA 69:9-13 [Musk Decl., ¶ 4].)
C.
Hothi’s Sideswipes a Tesla Employee.
On February 21, 2019, Tesla security observed Hothi’s car in
Verified Answer, ¶ 4].)
Even though Musk did not rely on this incident for
purposes of his anti-SLAPP motion, Hothi submitted this evidence
in opposition to the motion. (7 AA 642:23-643:11 [Hothi 1/11/21
Decl., ¶ 35-37].)
4
17
Document received by the CA 1st District Court of Appeal.
1/11/21 Decl., ¶ 10].)
PDF Page 19
the parking lot of Tesla’s Fremont factory. (1 AA 85 [James Decl., p.
1].) Two Tesla security officers were dispatched to deliver a verbal
notice of trespass. (Ibid.) As one of the security officers, Tyler James,
approached Hothi’s vehicle, Hothi made eye contact with James, but
refused to roll down his window. (Ibid.) Hothi then left the stall,
and “the drivers’ side of his vehicle made contact with [the officer’s]
left knee as he drove out of the stall.” (Ibid.)
notice of trespass while Hothi was stopped at a stop sign on a
private access road adjacent to the Tesla Fremont factory. (1 AA 60
[Leslie Decl., p. 1].) The security officer who was hit reported it to
Tesla; Tesla reported the matter to the police; and the police later
confirmed that Hothi was the driver of the vehicle. (Id., p. 3.) Hothi
cannot deny that his car may have hit the officer, only stating that he
“does not believe” it did so. (7 AA 640:12-17 [Hothi 1/11/21 Decl. ¶
24].)
After the incident at the Tesla factory, Musk was informed by
Tesla security that Hothi had been caught trespassing at the Tesla
18
Document received by the CA 1st District Court of Appeal.
The Tesla officers followed Hothi and delivered a verbal
PDF Page 20
factory, and that he had hit a Tesla security officer with his car as he
fled the scene. (1 AA 69:14-18 [Musk Decl., ¶ 5].)
D.
Tesla’s Restraining Order Proceedings Against Hothi.
On April 19, 2019, Tesla filed an ex parte Petition for a
Temporary Restraining Order against Hothi, which was granted the
same day. (2 AA 215-21, 237-44 [RJN Ex. B, Petition, and Ex. C,
Order].) Hothi opposed Tesla’s request for a permanent restraining
1, 2019, the Court granted in part Hothi’s request to obtain discovery
from Tesla in advance of a hearing on Tesla’s request for a
permanent restraining order, including the production of Tesla’s
proprietary video and audio recordings. (2 AA 246-50 [RJN Ex. D,
7/1/19 Discovery Order].)
On July 26, 2019, Tesla withdrew its
Petition, choosing not to produce audio and video recordings that
would include Tesla’s confidential information and would invade
the privacy of Tesla employees, who had already been harassed
online due to the litigation with Hothi. (2 AA 253-54 [RJN Ex. E,
Letter to Court from Tesla and Withdrawal of Petition].)
19
Document received by the CA 1st District Court of Appeal.
order. (6 AA 570-87 [RJN Ex. L, Hothi Opp. to Injunction].) On July
PDF Page 21
On July 19, 2019, Hothi’s counsel sent a letter to Tesla stating
that he “intend[s] to file a civil action for malicious prosecution”
related to Tesla’s pursuit of the restraining order.
(1 AA 141
[Zalduendo Decl. Ex. E, 7/19/19 Sperlein letter].) On August 13,
2019, Hothi sought recovery of his attorneys’ fees in connection with
Tesla’s petition. (3 AA 269-88 [RJN Ex. G, Fees Mtn.].) The Court
denied Hothi’s motion on October 28, 2019. (5 AA 401-02 [RJN Ex.
E.
Musk’s Emails to Greenspan.
On August 7, 2019, Aaron Greenspan, who operates a website
that covers topics such as Tesla, other companies, and the legal
system,5 emailed Musk asking about any assets he holds outside the
United States. (1 AA 73-75 [Musk Decl. Ex. A, Greenspan 8/7/19
email at 12:11 p.m.].)6 Musk responded. (1 AA 77 [Musk Decl. Ex.
The website, plainsite.org, purports to make “huge volumes
of data accessible to the public free of charge” and to let “ordinary
citizens impact the law-making process.” (1 AA 139 [Zalduendo
Decl. Ex. D].)
5
Hothi’s counsel in this action, Lawrence Fossi, was bcc’ed
on Greenspan’s first email to Musk. Fossi replied to all, revealing
20
6
Document received by the CA 1st District Court of Appeal.
H, 10/28/19 Order on Fees Mtn.].)
PDF Page 22
A, Musk 8/7/19 email at 2:05 p.m.].)
After further exchanges,
Greenspan wrote another email, raising issues about Tesla’s
Autopilot system and Tesla’s interactions with the National
Highway Traffic Safety Administration. (1 AA 77 [Musk Decl. Ex. B,
Greenspan 8/7/19 email at 4:03 p.m.].)
In that same email, Greenspan wrote: “Second, the way your
organization has treated Anna Watson, Christina Balan, Martin
shameful, and has exemplified anything but openness. Randeep
was interested in your factory output precisely because you weren’t
being open at all . . . .” (Ibid.). Musk replied on August 7, 2019:
The data is unequivocal that Autopilot is safer
than human driving by a significant margin. It is
unethical and false of you to claim otherwise. In
doing so, you are endangering the public.
As for the people you mention, below, they
have actively harassed and, in the case of Hothi,
almost killed Tesla employees. What was a
sideswipe when Hothi hit one of our people
could easily have been a death with 6 inches of
difference.
his inclusion in the correspondence, which was noted by Musk in his
reply to Greenspan’s first email. (1 AA 73 [Musk Decl. Ex. A].)
21
Document received by the CA 1st District Court of Appeal.
Tripp, Karl Hansen, and Randeep Hothi—among others—is truly
PDF Page 23
How can you possibly endorse this? You
obviously couldn’t care less about the truth.
(1 AA 77 [Musk Decl. Ex. B, Musk 8/7/19 email at 5:46 p.m.].)
Greenspan responded about Musk’s statements related to
Autopilot technology and also stated about Hothi: “So you’ll have
to do better than trying to pin an almost-but-not-even-close murder
on Randeep. No one was even injured. Any one of your vehicles
could kill someone with 6 inches of difference, if, for example, there
Greenspan 8/7/19 email at 6:17 p.m., emphasis added].) Greenspan
then published the full email exchange with Musk on his Twitter
and his website. (1 AA 15:24-26 [Compl., ¶ 36].)
F.
Hothi’s Lawsuit and Musk’s Motion to Strike.
On August 4, 2020, Hothi brought this action, alleging a single
claim for defamation against Musk. Musk’s August 7, 2019 email is
the entire basis for Hothi’s lawsuit. (1 AA 16:10-13 [Compl., ¶ 40].)
On October 30, 2020, Musk filed a motion to strike pursuant to
Cal. Code Civ. Proc. Section 425.16. (1 AA 34-55 [Mtn. to Strike].)
Hothi filed his opposition on January 11, 2021, and Musk filed his
22
Document received by the CA 1st District Court of Appeal.
was a sudden acceleration event . . .” (1 AA 79 [Musk Decl. Ex. C,
PDF Page 24
reply on January 20, 2021. (7 AA 618-435 Opp. to Mtn. to Strike]; 8
AA 781-795 [Reply to Mtn. to Strike].)
On January 27, 2021, the trial court issued its order denying
Musk’s motion and finding, among other things: (a) that Musk’s
statements were not protected by the anti-SLAPP statute as being
“in connection with a public issue” because they were about “the
alleged conduct of Plaintiff” and “not statements regarding Tesla’s
issue under consideration by a court because “the TRO Petition had
already been dismissed [and] [w]hile there was a motion for
attorney’s fees after the email was written, the fees were not the
subject of the alleged defamatory statements”; (c) that “there are
triable issues of facts” regarding falsity because “Plaintiff allegedly
injured the security officer at the Tesla Fremont factory, but the
subject statements accuse Plaintiff of almost killing multiple Tesla
employees”; (d) that there was no requirement of actual malice
because the statements were not germane to a public controversy, as
they “do not concern Plaintiff’s opinion on the operations of Tesla”;
23
Document received by the CA 1st District Court of Appeal.
operations or its vehicles”; (b) that the statements did not concern an
PDF Page 25
and (e) that “Plaintiff can demonstrate malice” based solely on
evidence that Musk allegedly disliked Hothi, namely a cartoon
Musk posted on Twitter of a popular meme the same day as the
TRO application and statements made by Musk in court filings. (8
AA 829-32 [1/27/21 Order].)
STATEMENT OF APPEALABILITY
The trial court denied appellants’ special motion to strike
[1/27/21 Order].) Appellants timely noticed an appeal on March 24,
2021. (8 AA 835 [Notice of Appeal].) Consequently, the January 27,
2021 order is appealable under Code of Civil Procedure section
425.16(i).
STANDARD OF REVIEW
This Court applies de novo review to all aspects of the Section
425.16 analysis. (Tuszynska v. Cunningham (2011) 199 Cal.App.4th
257, 266-67 [“On appeal, we review the trial court’s decision de novo,
engaging in the same two-step process to determine, as a matter of
law, whether the defendant met its initial burden of showing the
action is a SLAPP, and if so, whether the plaintiff met its evidentiary
24
Document received by the CA 1st District Court of Appeal.
under the anti-SLAPP statute on January 27, 2021. (8 AA 829-32
PDF Page 26
burden on the second step.”]; Cabral v. Martins (2009) 177
Cal.App.4th 471, 478 [“‘A ruling on a special motion to strike under
section 425.16 is reviewed de novo. This includes whether the antiSLAPP statute applies to the challenged claim. Furthermore, we
apply our independent judgment to determine whether [plaintiff’s]
causes of action arose from acts by [defendant] in furtherance of
[defendant’s] right of petition or free speech in connection with a
then independently determine, from our review of the record as a
whole, whether [plaintiff] has established a reasonable probability
that he would prevail on his claims.’”], citations omitted.)
ARGUMENT
I.
THE ANTI-SLAPP STATUTE APPLIES TO HOTHI’S
CLAIM FOR DEFAMATION AGAINST MUSK.
A.
The Anti-SLAPP Statute Applies to Any Act in
Furtherance of a Person’s Exercise of Free Speech on a
Public Issue.
California’s
anti-SLAPP statute,
Section
425.16 of
the
California Code of Civil Procedure, provides a prompt means of
25
Document received by the CA 1st District Court of Appeal.
public issue. Assuming these two conditions are satisfied, we must
PDF Page 27
terminating lawsuits that tend to chill the exercise of the
constitutional rights of petition and free speech. (Haight Ashbury
Free Clinics, Inc. v. Happening House Ventures (2010) 184 Cal.App.4th
1539, 1547.)
The statute requires dismissal of causes of action
“arising from any act . . . in furtherance of [a] person’s right of
petition or free speech under the United States or California
Constitution in connection with a public issue . . . , unless the court
probability that the plaintiff will prevail on the claim.” (Cal. Civ.
Proc. Code § 425.16(b)(1).)
Section 425.16 “shall be construed
broadly.” (Id. at § 425.16(a).)
Courts engage in a two-step analysis when applying the antiSLAPP statute: “First, the court decides whether the [moving party]
has made a threshold showing that the challenged cause of action is
one arising from protected activity.” (Neville v. Chudacoff (2008) 160
Cal.App.4th 1255, 1261 (Neville), internal citation omitted.) “In the
anti-SLAPP context, the critical point is whether the plaintiff’s cause
of action itself was based on an act in furtherance of a person’s right
26
Document received by the CA 1st District Court of Appeal.
determines that the plaintiff has established that there is a
PDF Page 28
of petition or free speech under the United States or California
Constitution[.]” (Premier Med. Mgmt. Sys. v. Cal. Ins. Guarantee Ass’n
(2006) 136 Cal.App.4th 464, 472, citation omitted.) “A cause of action
is subject to a motion to strike under the anti-SLAPP statute even if it
is based only in part on allegations regarding protected activity.”
(Ibid., citation omitted.)
Once a court determines that the anti-SLAPP statute applies, it
determines
whether
the
[complaining
party]
has
demonstrated a probability of prevailing on the claim.” (Neville,
supra, 160 Cal.App.4th at 1261-62.) An anti-SLAPP motion, “like a
summary judgment motion, pierces the pleadings and requires an
evidentiary showing.”
(Simmons v. Allstate Ins. Co. (2001) 92
Cal.App.4th 1068, 1073 (Simmons).) “If the initial evidentiary burden
is met by the moving party, the burden shifts to the party opposing
the motion to avoid dismissal of the action.” (Ibid.)
The anti-SLAPP statute applies here for two independent
reasons: (1) Musk’s email arose from his right of free speech in
27
Document received by the CA 1st District Court of Appeal.
“then
PDF Page 29
connection with a public issue; and (2) the email concerned issues
that were under consideration by a court.
B.
Hothi’s Claims Arise from Musk’s Speech on Several
Issues of Public Interest.
Pursuant to its terms, the anti-SLAPP statute protects any
exercise of free speech “in connection with a public issue or an issue
of public interest.”
(Cal. Code Civ. Proc. § 425.16(e)(4).)
This
interest; no public forum is required. (Hailstone v. Martinez (2008)
169 Cal.App.4th 728, 736.) Nor is the extent of the “publication”
determinative. “Regardless of the scope of publication, protection
under the anti-SLAPP statute turns on whether the activity of the
defendant involves the right of petition or free speech in connection
with a public issue.” (Dyer v. Childress (2007) 147 Cal.App.4th 1273,
1282.)
As the California Supreme Court has outlined, courts utilize a
two-part analysis to determine whether a statement is protected as
one “in connection with a public issue or an issue of public interest”:
28
Document received by the CA 1st District Court of Appeal.
includes private communications concerning issues of public
PDF Page 30
“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.
Second, we ask what functional
relationship exists between the speech and the public conversation
about some matter of public interest.”
(FilmOn.com Inc. v.
DoubleVerify Inc. (2019) 7 Cal.5th 133, 149-50 (FilmOn).)
1.
The Actions of Tesla, Musk, and the $TSLAQ
Group Are Matters of Public Interest.
defendants “virtually always” succeed in identifying issues of public
interest connected to the speech. (Id. at p. 152 [holding defendant
had met burden].) Matters of public interest “include activities that
involve private persons and entities, especially when a large,
powerful organization may impact the lives of many individuals.”
(Du Charme v. Int’l Bhd. of Elec. Workers, Local 45 (2003) 110
Cal.App.4th 107, 115, citation omitted.) An issue may still be of
public interest without being widely important or significant.
(Nygård, Inc. v. Uusi-Kerttula (2008) 159 Cal.App.4th 1027, 1039
(Nygård) [statements to magazine about work experience for
29
Document received by the CA 1st District Court of Appeal.
As to the first part, the Supreme Court has recognized that
PDF Page 31
prominent businessman and celebrity were of public interest].) This
is particularly true when the issue involves a high-profile person
like Musk. (Ibid.; see also Jackson v. Mayweather (2017) 10 Cal.App.5th
1240, 1254 [statements about girlfriend of prominent boxer getting
cosmetic surgery matter of public interest]; Hall v. Time Warner, Inc.
(2007) 153 Cal.App.4th 1337, 1347 [issues related to Marlon Brando’s
will matter of public interest].)
are matters of public interest. (Cal. Pub. Emp. Ret. System v. Moody’s
Inv’rs Serv., Inc. (2014) 226 Cal.App.4th 643, 660 [statement about
financial condition of structured investment protected]; GetFugu, Inc.
v. Patton Boggs LLP (2013) 220 Cal.App.4th 141, 151 [statements
about corporation being under FBI investigation matter of public
interest]; Ampex Corp. v. Cargle (2005) 128 Cal.App.4th 1569, 1576
(Ampex) [statements “about corporate activity constitute an issue of
public importance upon considering the following pertinent factors:
(1) whether the company is publicly traded; (2) the number of
30
Document received by the CA 1st District Court of Appeal.
Similarly, statements related to public companies like Tesla
PDF Page 32
investors; and (3) whether the company has promoted itself by
means of numerous press releases”].)
Here, there were several relevant issues of public interest:
(i)
The manufacturing and technology of Tesla and
Hothi’s public statements on those topics.
As Hothi concedes,
there was public interest in “Tesla’s manufacturing operations” and
“technological capabilities” which he researched as a purported
particular, Hothi entered the public debate about claims made by
Tesla and Musk regarding Tesla’s automation technology and the
rate of Tesla’s Model 3 production. (Id. at 637:15-638:26 [¶¶ 4-15].)
Hothi asserts that he “came to prominence” based on his
“observations about Tesla’s Model 3 production rates,” which he
posted on Twitter, purportedly gaining thousands of Twitter
followers as a result. (3 AA 291:4-17 [Hothi 8/12/19 Decl., ¶¶ 5, 6].)
Hothi also claims that his posts about Tesla’s automation technology
received widespread public attention.
(Id. at 292:10-20 [Hothi
8/12/19 Decl., ¶ 10].) These are all matters related to a an issue of
31
Document received by the CA 1st District Court of Appeal.
“citizen journalist.” (7 AA 637:8-13 [Hothi 1/11/21 Decl., ¶ 3].) In
PDF Page 33
public interest, as shown in the attention Hothi claims to have
drawn. (Ampex, supra, 128 Cal.App.4th at 1576; Nygård, supra, 159
Cal.App.4th at 1039.)
(ii)
The treatment of critics by Tesla and Musk. There was
likewise public interest in how Tesla and Musk treats critics. Hothi
claims that as part of his work as a “citizen journalist” he has
“revealed discrepancies in claims [Tesla] and [Musk] have made
637:15-638:2 [Hothi 1/11/21 Decl., ¶¶ 4-15].) Likewise, in the email
to which Musk responded, Greenspan criticized Musk about “the
way [his] organization has treated” certain employees and others,
citing
a litigation that he alleged made Musk “come off as
incredibly hostile as a CEO.”
(1 AA 77 [Musk Decl. Ex. B,
Greenspan 8/7/19 email at 4:03 p.m].) Indeed, the very paragraph in
Greenspan’s email to which Musk responds cites public internet
postings by Greenspan about Tesla’s “treatment” of its critics. (Ibid.)
(linking to www.plainsite.org/ tags/tesla-workers-rights).
These
public debates about the actions of Tesla and Musk are all matters of
32
Document received by the CA 1st District Court of Appeal.
about Tesla’s . . . treatment of its employees and customers.” (7 AA
PDF Page 34
public interest.
(Ampex, supra, 128 Cal.App.4th at 1576; Nygård,
supra, 159 Cal.App.4th at 1039.)
(iii)
The $TSLAQ conspiracy against Tesla.
Hothi has
admitted that the “$TSLAQ phenomenon” involves a “wide-ranging
group of people” who have been featured in a documentary and
“described in various newspaper articles.” (3 AA 290:21-27 [Hothi
8/12/19 Decl., ¶¶ 2, 3].) Hothi is a member of this group, which is
company’s downfall. (Id. at 290:21-24 [¶ 2]; 1 AA 24:5-12 [Musk
Verified Answer, ¶¶ 1-2].)
(See Gilbert v. Sykes (2007) 147
Cal.App.4th 13, 23 (Gilbert) [the public interest requirement must be
“construed broadly”]; Nygård, supra, 159 Cal.App.4th at 1039 [“Any
issue in which the public takes an interest is of ‘public interest.’”].)
2.
Musk’s Statements Related Directly to the
Issues of Public Interest.
As to the second step, the Court determines whether a
statement “contributes to—that is, participates in or furthers—some
public conversation on this issue.” (FilmOn, supra, 7 Cal.5th at p.
152, internal quotation omitted.)
33
In doing so, the Court should
Document received by the CA 1st District Court of Appeal.
“skeptical about the Tesla business enterprise” and seeks the
PDF Page 35
consider the context “including audience, speaker, and purpose.”
(Ibid.) Each of the considerations identified by the Supreme Court in
determining
whether
a
statement
contributes
to
a
public
conversation weighs in favor of protecting Musk’s statements:
Audience:
Owner of website that posts information
about Tesla and lawsuits to the public (who then
published his exchange with Musk to the world).7
receives worldwide, daily media attention.
Purpose: To counter allegations that Tesla and Musk
had misled the public about its technology and
production and that Tesla mistreats those who criticize
the company, and to correct the record about actions of
the $TSLAQ community to cause harm to Tesla.
The trial court held that the challenged statements did not
contribute to a public conversation because the “defamatory
In fact, Greenspan’s first email to Musk in this exchange
cc’ed prominent individuals who had or were then presently serving
on Tesla’s board of directors. (1 AA 73-75 [Musk Decl. Ex. A].)
7
34
Document received by the CA 1st District Court of Appeal.
Speaker: World-famous CEO of public company who
PDF Page 36
statements do not concern Tesla’s conduct, but the alleged conduct
of Plaintiff.” (8 AA 831 [1/27/21 Order at p. 3].) However, this
application of the test is overly restrictive for several reasons:
First,
Musk’s
statements
“contribute[d]
to—that
is,
participate[d] in or further[ed]” a public conversation regarding
Tesla’s manufacturing and technology. (FilmOn, supra, 7 Cal.5th at
p. 152.)
The California Supreme Court has made clear that the
discourse, not “the social utility of the speech at issue, or to the
degree to which it propelled the conversation in any particular
direction.” (Id. at p. 151.) As fully described above, Hothi made
numerous
public
claims
about
Tesla’s
manufacturing
and
technology. (See, supra, Section I(B)(1)(i).) Musk “furthered” the
debate on those same issues by pointing out Hothi’s unreliable and
improper methods for obtaining his supposed information—namely
harassing Tesla employees (through the use of planted cameras,
uninvited visits to the factory, following test cars, sideswiping an
employee while trespassing, etc.). (See, supra, Sections I(B)-(C); Copp
35
Document received by the CA 1st District Court of Appeal.
relevant question is whether the speech furthered or contributed to a
PDF Page 37
v. Paxton (1996) 45 Cal.App.4th 829, 846 (Copp) [statements about
plaintiff “were germane to the public controversy [because] [t]he
public needed to know whether there was reason to listen to him”].)
Second, Musk’s statements are directly related to the
discussion of Tesla’s and Musk’s alleged mistreatment of their
critics.
Greenspan directly challenged Musk, stating that his
treatment of Hothi and others was “shameful” and that Hothi was
[Musk Decl. Ex. B, Greenspan 8/7/19 email at 4:03 p.m.].) Musk
responded directly to that assertion, stating that it was Hothi who
had engaged in misconduct. (Id. [Musk Decl., Ex. B, 8/7/19 email at
5:46 p.m.].)
Third, although the trial court held there was no evidence that
the conduct of the $TSLAQ community was a matter of public
interest, (8 AA 831 [1/27/21 Order at p. 3], that is contradicted by
Hothi’s own admissions that the group has received extensive media
coverage. (3 AA 290:25-27 [Hothi 8/12/19 Decl., ¶ 3].) Misconduct
by members of this group against Tesla is related directly to the
36
Document received by the CA 1st District Court of Appeal.
just someone who “was interested in your factory output.” (1 AA 77
PDF Page 38
group’s goal of destroying the company, which has been repeated
by Hothi, who also has publicly stated he wants to send Musk to jail.
(1 AA 125 [Zalduendo Decl. Ex. A, Hothi April 20, 2019 tweet].)
***
Because there were several issues of public interest and a
direct relationship between the speech and the public conversation
of those issues, Musk’s statements are protected by the anti-SLAPP
C.
Hothi’s Claim Also Arises from Musk’s Speech About
Issues that Were Pending Before The Court.
1.
The Anti-SLAPP Statute Protects Speech About
Pending or Threatened Cases.
The anti-SLAPP statute also protects statements that relate to
an issue under consideration or review by a judicial body. (Cal.
Code Civ. Proc. § 425.16(e)(2).) This is an independent grounds for
application of the statute and does not depend on whether it relates
to a matter of public interest. “[A]ll that matters is that the First
Amendment activity . . . be made in connection with an issue being
37
Document received by the CA 1st District Court of Appeal.
statute. (FilmOn, supra, 7 Cal.5th at 149-50.)
PDF Page 39
reviewed by an official proceeding.” (Briggs v. Eden Council for Hope
& Opportunity (1999) 19 Cal.4th 1106, 1116.)
A statement is “in connection with” litigation if it “relates to
the substantive issues in the litigation and is directed to persons
having some interest in the litigation.” (Neville, supra, 160
Cal.App.4th at 1266; Seltzer v. Barnes (2010) 182 Cal.App.4th 953, 962
[“courts have adopted a fairly expansive view of what constitutes
internal quotation omitted.) Statements to non-parties, including the
press, are protected, if they relate to an issue being litigated.
(Summerfield v. Randolph (2011) 201 Cal.App.4th 127, 136 [statute
“has been held to protect statements to persons who are not parties
or potential parties to the ligation . . .”], internal quotation omitted;
Annette F. v. Sharon S. (2004) 119 Cal.App.4th 1146, 1161 (Annett F.)
[statements about alleged abuse to newspaper protected because
they “were made in connection with an issue under consideration or
38
Document received by the CA 1st District Court of Appeal.
litigation-related activities within the scope of section 425.16.”],
PDF Page 40
review by a . . . judicial body.”].)8 As fully described below, these
same rules apply to statements about litigation that is merely
threatened. (Neville, supra, 160 Cal.App.4th at 1261.)
Musk’s statements here related to issues in two separate
lawsuits—the harassment case brought by Tesla against Hothi and
the malicious prosecution action threatened by Hothi against Tesla.
2.
The Challenged Statements Related to the
Ongoing Injunction Proceeding.
ongoing at the time of Musk’s email. Musk sent his email on August
7, 2019. (1 AA 77 [Musk Decl. Ex B.) This was between the time
when Musk withdrew his application for a preliminary injunction
(July 26) and when Hothi filed a motion for attorney’s fees in the
same case (August 13). (2 AA 253-54 [RJN Ex. E, letter to the Court];
3 AA 269-88 [RJN Ex. G, Fees Mtn.].) The case continued until the
This standard is less restrictive than that of the litigation
privilege, which requires that the third party have a “substantial
interest” in the subject matter. (Argentieri v. Zuckerberg (2017) 8
Cal.App.5th 768, 782.)
8
39
Document received by the CA 1st District Court of Appeal.
The restraining order litigation between Hothi and Tesla was
PDF Page 41
trial court denied Hothi’s fee motion on October 28, 2019. (5 AA
401-02 [RJN Ex. H, Order Denying Fees Mtn.].)
There is no question that the restraining order litigation
related directly to the same issues about which Musk wrote.
It
concerned Hothi’s repeated harassment of Tesla employees,
including the incident in which he sideswiped a security officer. (2
AA 215-21 [RJN Ex. B, Tesla’s TRO Petition].)
because “the TRO Petition had already been dismissed” and “the
fees were not the subject of the allegedly defamatory statements.” (8
AA 831 [1/27/21 Order at p. 3].) However, in the attorneys’ fees
motion, Hothi specifically argued (a) that “Tesla and its CEO Elon
Musk have a history of silencing critics” and (b) that Hothi had not
engaged in “harassment” or hit a Tesla security employee. (3 AA
283-88 [RJN Ex. G, Fees Mtn. at 10-14].) These, of course, are the
exact topics of Musk’s email. (1 AA 77 [Musk Decl. Ex. B) (See
Annette F., supra, 119 Cal.App.4th at 1160-61 [finding statement was
40
Document received by the CA 1st District Court of Appeal.
The trial court held that anti-SLAPP protection did not apply
PDF Page 42
in connection with an issue under consideration by a court because
they were “directly at issue” in those proceedings].)
3.
The Challenged Statements Related to Hothi’s
Threatened Case Against Musk.
On July 19, 2019, (prior to Musk’s email), Hothi sent a demand
letter to Tesla threatening a new malicious prosecution action based
on Tesla’s restraining order litigation (which, in turn, was based on
Hothi’s harassment and sideswiping of a Tesla employee). (1 AA
Hothi had threatened a lawsuit (whether ultimately spurious or
not), Musk’s statements related to those topics are separately
protected, as numerous cases have held. (See, e.g., Neville, supra, 160
Cal.App.4th at 1261 [pre-litigation communications or demand
letters
regarding
“impending
litigation”
are
issues
under
consideration by judicial body for purposes of section 425.16(e)(2)];
Gotterba v. Travolta (2014) 228 Cal.App.4th 35, 41 [same]; Canaday v.
41
Document received by the CA 1st District Court of Appeal.
141-42 [Zalduendo Decl., Ex. E, Sperlein 7/19/19 letter].) Because
PDF Page 43
Peoples-Perry (N.D. Cal. Dec. 15, 2017) 2017 WL 6405618, at *4
[“threat of litigation” enough to qualify for anti-SLAPP protection].)9
***
Because of the complete overlap between the topics of Musk’s
email and both (a) the pending injunction/attorney’s fees litigation
and (b) the threatened malicious prosecution litigation, Musk’s
statements are protected by the anti-SLAPP statute (in addition to
interest). (See Cal. Code. Civ. Proc. 425.16(e)(2); Neville, supra, 160
Cal.App.4th at 1266.)
II.
HOTHI DID NOT DEMONSTRATE A PROBABILITY OF
PREVAILING.
Where, as here, the anti-SLAPP statute applies, a plaintiff
must show a probability of success to avoid summary dismissal of
its claims.
(Simmons, supra, 92 Cal.App.4th at 1073.)
It is the
plaintiff’s burden to establish that there is a probability that he will
Although the issue of threatened litigation was briefed to
the trial court, (1 AA 46:22-48:4 [Mtn. to Strike].), it was not
addressed in the order. (8 AA 829-32 [1/27/21 Order].)
9
42
Document received by the CA 1st District Court of Appeal.
being protected as a statement in connection with an issue of public
PDF Page 44
prevail on his claims.
(Cal. Civ. Proc. Code § 425.16(b)(1).)
Evaluating the probability of success requires analysis of the key
elements of the claim at issue (defamation), which are falsity and
actual malice. Hothi did not meet his burden of establishing either
element.
A.
Hothi Did Not Establish Falsity.
1.
The Applicable Law Concerning Falsity.
existence of falsehood.” (Monterey Plaza Hotel v. Hotel Emps. & Rest.
Emps. (1999) 69 Cal.App.4th 1057, 1064, quoting Letter Carriers v.
Austin (1974) 418 U.S. 264, 283.) “There can be no recovery for
defamation without a falsehood. Thus, to state a defamation claim
that survives a First Amendment challenge, plaintiff must present
evidence of a statement of fact that is provably false.” (Gilbert, supra,
147 Cal.App.4th at 27, emphasis in original, internal quotation
omitted.)
Statements “cannot form the basis of a defamation action if
they cannot reasonably be interpreted as stating actual facts about
an individual. Thus, rhetorical hyperbole, vigorous epithet[s], lusty
43
Document received by the CA 1st District Court of Appeal.
“The sine qua non of recovery for defamation . . . is the
PDF Page 45
and imaginative expressions of contempt, and language used in a
loose, figurative sense have all been accorded constitutional
protection.” (Ibid., internal quotations omitted.)
Similarly, an opinion is “actionable only if it could reasonably
be understood as declaring or implying actual facts capable of being
proved true or false. . . . An opinion is not actionable if it discloses
all the statements of fact on which the opinion is based and those
Cal.App.4th 1456, 1471 (Ruiz), internal quotations omitted.)
To determine “whether the statements in question are
provably false factual assertions, courts consider the totality of the
circumstances. Whether challenged statements convey the requisite
factual imputation is ordinarily a question of law for the court.”
(Nygård, supra, 159 Cal.App.4th at 1049, internal quotations omitted.)
2.
The Challenged Statements Were True.
In the challenged email, Musk made three statements that
Hothi claims are defamatory:
that he “actively harassed” Tesla employees;
that he “sideswiped”/“hit one of our people”;
44
Document received by the CA 1st District Court of Appeal.
statements are true . . .” (Ruiz v. Harbor View Cmty. Ass’n (2006) 134
PDF Page 46
that a sideswipe “could easily have been a
death with 6 inches of difference”/he “almost
killed” Tesla employees.
(1 AA 77 [Musk Decl., Ex. B, Musk 8/7/19 email at 5:46
p.m.].)
(a)
Statement that Hothi “Harassed” Tesla Employees.
There is ample, undisputed evidence that Hothi harassed
He surveilled Tesla’s parking lots and took
numerous pictures over the course of months, which he then posted
on Twitter; he posted about the activities of Tesla employees; he was
caught trespassing on Tesla property and hit a Tesla employee with
his car when fleeing the scene; he planted hidden cameras to secretly
record Tesla operations and report on the activities of Tesla
employees causing Tesla to spend time and resources on countersurveillance; he tried to speak with employees numerous times
when visiting the factory uninvited; he tracked cars in the factory
parking lots; he made phone calls to Tesla sales centers to “gather
45
Document received by the CA 1st District Court of Appeal.
Tesla employees.
PDF Page 47
information,” and he followed Tesla employees on the freeway,
while taking pictures and videos. (See, supra, Sections B-C.)
These actions could reasonably and accurately be described as
“harassment.” (Summit Bank v. Rogers (2012) 206 Cal.App.4th 669,
699 [in defamation case, “statements must be viewed from the
perspective of the average reader”]; 6 AA 548 [RJN Ex. J, MerriamWebster
Dictionary
(2020),
defining
harass
as
“to
annoy
especially by uninvited and unwelcome . . . conduct.”].)10
Although Hothi’s harassment here is clear, even if it were not,
Musk’s statements would be protected as opinions. (See Ruiz, supra,
The trial court improperly refused to take judicial notice of
the definition of the word “harass.” (8 AA 832 [1/27/21 Order at p.
4].) However, courts are required to do so. (See Evid. Code § 451(e)
[courts shall take judicial notice of “[t]he true signification of all
English words and phrases . . . .”]; see also, e.g., Sierra Club v. Superior
Court (2013) 57 Cal.4th 157, 171 [California Supreme Court taking
judicial notice of dictionary definition]; Lincoln Unified Sch. Dist. v.
Superior Court (2020) 45 Cal.App.5th 1079, 1092 [holding MirriamWebster online dictionary was “proper source to determine the
usual and ordinary meaning of words”].)
10
46
Document received by the CA 1st District Court of Appeal.
persistently” or to “create an unpleasant or hostile situation for
PDF Page 48
134 Cal.App.4th at 1472-73
[defendant’s accusation of plaintiff
“harassing” a board and “virtually stalking” the directors not
actionable statement of fact]; Rosenaur v. Scherer (2001) 88
Cal.App.4th 260, 278-279 [calling plaintiff “thief” and “liar”
protected].)
The trial court held that Musk’s statement was “at best . . . [an]
opinion[] implying assertions of fact.” (8 AA 832 [1/27/21 Order at
terms of an opinion can be actionable where it implies an assertion
of objective fact. (7 AA 629:23-27 [Hothi Opp. at 10].) While that is
accurate, for the statement to be defamatory, the implied facts must
be false. (Moyer v. Amador Valley J. Union High Sch. Dist. (1990) 225
Cal.App.3d 720, 724 [dispositive question is whether “the published
statements imply a provably false factual assertion.”], emphasis
added.) Here, Hothi did not show that Musk’s statement about
Hothi “harassing” Tesla employees was false under that word’s
ordinary meaning, and he did not show that the statement implied
any false facts.
Indeed, Hothi has admitted all the factual
47
Document received by the CA 1st District Court of Appeal.
p. 4].) In the lower court, Hothi argued that a statement couched in
PDF Page 49
underpinnings of Musk’s statement. (See, supra, Sections A-F.) As
such, Hothi has not met his burden of showing that Musk made a
“statement of fact that is provably false.”
(Gilbert, supra, 147
Cal.App.4th at p. 27.)
(b) Statement that Hothi Sideswiped a Tesla Employee. It is
undisputed that a Tesla security officer reported to his superiors that
he had been struck by Hothi’s vehicle, reported the same to police,
temporary restraining order) stating that Hothi hit him with his
vehicle. (See, supra, Section C.) Musk was aware of, and relied on,
this declaration as well as the fact that the employee told his
superiors that he had been hit by Hothi, and that Tesla had filed a
police report based on the incident, at the time he wrote the email to
Greenspan. (1 AA 69:25-70:12 [Musk Decl., ¶ 7].)
Hothi did not submit any evidence that directly contradicts
the sworn declaration of the Tesla employee. Hothi’s declaration
only said that he “does not believe” he struck Mr. James. (7 AA
640:12-17 [Hothi 1/11/21 Decl. ¶ 24].) As such, Hothi has not met his
48
Document received by the CA 1st District Court of Appeal.
and submitted a declaration (in connection with Tesla’s request for a
PDF Page 50
burden of showing that Musk’s statements about Hothi sideswiping
a Tesla employee are provably false. (Cf. Mackey v. Bd. of Trs. of
California State Univ. (2019) 31 Cal.App.5th 640, [in summary
judgment context, party does not create triable issue “by asserting
facts based on mere speculation and conjecture, but instead must
produce admissible evidence . . .”].)
(c) Statements About Danger of Hothi’s Actions. Musk’s
inches of difference” and that Hothi “almost killed” Tesla employees
are protected opinions, based on the report that Hothi sideswiped
the Tesla officer while fleeing Tesla’s property. (1 AA 69:25-70:12
[Musk Decl. ¶ 7].)
These statements were Musk’s opinions based on facts that
were disclosed in the same document.
In making a falsity
determination, courts must analyze the statement in context and
“examine
the
communication.”
nature
and
full
content
of
the
particular
(Overstock.com, Inc. v. Gradient Analytics, Inc.
(2007) 151 Cal.App.4th 688, 701 (Overstock).) As courts have held:
49
Document received by the CA 1st District Court of Appeal.
statements that a sideswipe “could easily have been a death with 6
PDF Page 51
A statement of opinion based on fully disclosed
facts can be punished only if the stated facts are
themselves false and demeaning. . . . When the
facts underlying a statement of opinion are
disclosed, readers will understand they are
getting the author’s interpretation of the facts
presented.
(Standing Comm. v. Yagman (9th Cir. 1995) 55 F.3d 1430, 1439; Overhill
Farms, Inc. v. Lopez (2010) 190 Cal.App.4th 1248, 1263, same, quoting
Standing Comm.; see also Herring Networks, Inc. v. Maddow (S.D. Cal.
discloses the facts on which he bases his opinion, the reader can
gauge for himself whether the factual basis adequately supports the
opinion.], internal quotation omitted.)
Here, the full factual basis of Musk’s opinions were disclosed
in his back-and-forth with Greenspan, all of which was published:
(a) a Tesla employee was “sideswiped;” (b) “no one was even
injured;” and (c) any vehicle “could kill someone with 6 inches of
difference.” (1 AA 77 [Musk Decl., Ex. B, Musk 8/7/19 email at 5:46
p.m.]; 1 AA 79 [Musk Decl., Ex. C, Greenspan 8/7/19 email at 6:17
p.m.].) The factual basis is all in the published email exchange, and
it is all true.
50
Document received by the CA 1st District Court of Appeal.
2020) 445 F. Supp. 3d 1042, 1053 [“[W]hen a publisher accurately
PDF Page 52
The lower court’s finding that Hothi had met his burden of
establishing a probability that he will prove the falsity of Musk’s
statement was based solely on the grounds that “Plaintiff allegedly
injured the security officer at the Tesla Fremont factory, but the
subject statements accuse Plaintiff of almost killing multiple Tesla
employees.” (8 AA 832 [1/27/21 Order at p. 4].)
However, the trial court’s finding ignores the next line of the
people,” and Greenspan’s accompanying email reinforces that it was
one “person” who was sideswiped. (1 AA 77 [Musk Decl. Ex. B,
Musk 8/7/19 email at 5:46 p.m.]; 1 AA 79 [Musk Decl., Ex. C,
Greenspan 8/7/19 email at 6:17 p.m.].)
Again, all relevant facts
forming Musk’s opinion were disclosed. Moreover, it is undisputed
that there was another Tesla employee in the immediate vicinity
when Hothi struck James. (1 AA 85 [James Decl. p. 1].)
But more importantly, whether one or more people were at
risk ultimately does not make any difference to whether Musk
defamed Hothi. Failing to be precise does not make a statement
51
Document received by the CA 1st District Court of Appeal.
email, in which Musk makes it clear that Hothi “hit one of our
PDF Page 53
defamatory.
(Jackson v. Paramount Pictures Corp. (1998) 68
Cal.App.4th 10, 26 (Jackson) [“[I]t is sufficient if the substance of the
[statement] be proved true, irrespective of slight inaccuracy in the
details. Minor inaccuracies do not amount to falsity so long as the
substance, the gist, the sting, of the libelous [statement] be
justified.”]; Carver v. Bonds (2005) 135 Cal.App.4th 328, 344-45 [“[A]
statement is not considered false unless it would have a different
have produced.”].)
***
A reasonable person reading this exchange would not
conclude that Musk’s statement was anything other than an opinion
based on Hothi’s actions or that Hothi had actually killed or caused
serious injury to anyone.11 As a result, it is not defamatory. (See
Overstock, supra, 151 Cal.App.4th at 701 [courts must analyze
At worst, Musk’s statements constituted hyperbole or
“language used in a loose, figurative sense,” which is also protected.
(Gilbert, supra, 147 Cal.App.4th at 27.)
11
52
Document received by the CA 1st District Court of Appeal.
effect on the mind of the reader from that which the truth would
PDF Page 54
statement in context and “examine the nature and full content of the
particular communication.”].)
B.
Hothi Did Not Establish That Musk’s Statements
Were Made with Malice.
In order to prevail on this motion, Hothi must also
demonstrate by “clear and convincing evidence” that Musk’s
statements were made with “actual malice”—that Musk made
the truth. (Conroy v. Spitzer (1999) 70 Cal.App.4th 1446, 1451-52.)
Hothi can only meet his burden by “introducing sufficient facts to
establish a prima facie case of actual malice; in other words, []he
must establish a reasonable probability that []he can produce clear
and convincing evidence showing that the statements were made
with actual malice.”
(Young v. CBS Broad., Inc. (2012) 212
Cal.App.4th 551, 563 (Young), citations omitted.) Failure to present
evidence of actual malice is “a frequent basis for dismissal using the
anti-SLAPP statute.” (Anti-SLAPP Litigation § 5:10 [citing Annette
53
Document received by the CA 1st District Court of Appeal.
statements knowing they were false or with reckless disregard for
PDF Page 55
F., supra, 119 Cal.App.4th at 1162-1172]; see Cabrera v. Alam (2011) 197
Cal.App.4th 1077, 1092; Young, supra, 212 Cal.App.4th at 562-66.)
1.
The Constitutional Framework for Limited
Public Figure Plaintiffs.
To protect public debate and guard against the chilling effect
of litigation, the First Amendment requires that public figures prove
a statement is made with “actual malice.” (See N.Y. Times Co. v.
Sullivan (1964) 376 U.S. 254, 280; see also Gertz v. Robert Welch, Inc.
Claims brought by “limited
purpose” public figures—persons like Hothi who inject themselves
into a public controversy and “become[] public figure[s] for a
limited range of issues” related to that controversy—are also subject
to the “actual malice” standard. (Id. at 351.) “A person becomes a
limited public figure by injecting himself into the public debate
about a topic that concerns a substantial number of people. Once he
places himself in the spotlight on a topic of public interest, his
private words and conduct relating to that topic become fair game.”
(Gilbert, supra, 147 Cal.App.4th at 25, emphasis added.)
54
Document received by the CA 1st District Court of Appeal.
(1974) 418 U.S. 323, 334 (Gertz).)
PDF Page 56
A plaintiff is a limited purpose public figure and subject to the
actual malice standard where, as here: (1) there is a public
controversy; (2) the plaintiff voluntarily injects himself into and/or
seeks to influence the resolution of the public controversy; and (3)
the alleged defamatory statement is “germane” to the plaintiff’s
participation in the controversy. (See Copp, supra, 45 Cal.App.4th
846.) Determining whether a plaintiff is a limited purpose public
controversy and is a question of law that must be resolved by the
Court. (See Reader’s Digest Assn. v. Superior Court (1984) 37 Cal.3d
244, 255 (Reader’s Digest); see also Khawar v. Globe Int’l, Inc. (1998) 19
Cal.4th 254, 264.)
2.
Because Hothi Is a Limited Purpose Public
Figure, the Actual Malice Standard Applies
Here.
(a) There Were Public Controversies Concerning Tesla and
Tesla’s Critics. As described above, there were ongoing public
debates regarding Tesla’s claims about its manufacturing and
technology, Tesla’s treatment of its critics, and the $TSLAQ
conspiracy against the company. (See, supra, Sections I(B)(1)(i)-(iii).)
55
Document received by the CA 1st District Court of Appeal.
figure requires an analysis of the totality of the circumstances of the
PDF Page 57
These issues constitute “a dispute that [had] received public
attention because its ramifications will be felt by persons who are
not direct participants.” (Annette F., supra, 119 Cal.App.4th at 1164,
[citing Waldbaum v. Fairchild Publ’ns, Inc. (D.C. Cir. 1980) 627 F.2d
1287, 1297 (Waldbaum)].)
“Because the issue was being debated
publicly and if it had foreseeable and substantial ramifications for
nonparticipants, it was a public controversy.” (Annette F., supra, 119
consider “if the press was covering the debate, reporting what
people were saying and uncovering facts and theories to help the
public formulate some judgment,” and should not “question the
legitimacy of the public’s concern” or substitute its judgment of
newsworthiness, but should instead “look to what already were
disputes.”].)
As Hothi admitted, these issues “plainly ha[ve]
ramifications far beyond [Hothi] . . . .” (5 AA 408:18-19 [RJN, Ex. I,
Request to Continue, p. 2].)
(b) Hothi voluntarily injected himself into controversies
regarding Tesla. There could not be a clearer example of someone
56
Document received by the CA 1st District Court of Appeal.
Cal.App.4th at 1164; see also Waldbaum, supra, 627 F.2d at 1297 [courts
PDF Page 58
voluntarily injecting himself into a public debate. Hothi surveilled
Tesla employees, entered Tesla property, and was constantly posting
about his “findings.”
(See, supra, Sections A-B.)
Hothi himself
admits that he “came to prominence during 2018” for his Twitter
posts about Tesla, that he gained 10,000 followers on Twitter, and
that he “became part of the media discussion about Tesla’s [alleged]
production problems.” (3 AA 291:4-18 [Hothi 8/12/19 Decl., ¶¶ 5, 6,
Hothi plainly had “undertaken some voluntary act through
which he seeks to influence the resolution of the public issues
involved,” and indeed has broadcast his intent to “influence the
resolution” to the world via Twitter.
(Reader’s Digest, supra, 37
Cal.3d at 254 [defining limited purpose public figure].) It is not
necessary to show that Hothi “actually achieves prominence in the
public debate; it is sufficient that [a plaintiff] attempts to thrust
himself into the public eye [] or to influence a public decision.”
(Copp,
supra,
45
Cal.App.4th at 845–46, citations
57
omitted.)
Document received by the CA 1st District Court of Appeal.
emphasis added].)
PDF Page 59
Regardless, Hothi did achieve such prominence, as he recognizes. (3
AA 291:4-18 [Hothi 8/12/19 Decl., ¶¶ 5, 6].)
(c) Musk’s statements are germane to Hothi’s role in the
controversy. The trial court found that Tesla had not shown that
Musk’s statements were “germane” to the public controversies
because they “do not concern Plaintiff’s opinion on the operations of
Tesla . . . .” (8 AA 832 [1/27/21 Order at p. 4].) This was incorrect for
First, the trial court’s legal standard (requiring that Musk’s
statements be about Tesla’s operations) is too restrictive.
A
statement made in discussing a public controversy is germane
unless it is “wholly unrelated” to that controversy.
(Waldbaum,
supra, 627 F.2d at 1298; Jankovic v. Int'l Crisis Grp. (D.C. Cir. 2016) 822
F.3d 576, 589 (Jankovic) [same]; Black's Law Dictionary (11th ed.
2019) [defining “germane” as “relevant” or “pertinent”].)
Moreover, a statement is germane if it is about “plaintiff’s
participation in the controversy;” it does not have to be focused only
on the underlying controversy. (See Copp, supra, 45 Cal.App.4th at
58
Document received by the CA 1st District Court of Appeal.
several reasons.
PDF Page 60
846, emphasis added; see also Makaeff v. Trump Univ., LLC (9th Cir.
2013) 715 F.3d 254, 266 [defining germaneness as “whether the
alleged defamation is related to the plaintiff’s participation in the
controversy”], emphasis added; Jankovic, supra, 822 F.3d at 589 [“The
germaneness test is met because the defamatory statement relates to
the individual's role in the public controversy.”].)
Second, Musk’s statements were not “wholly unrelated” to the
in the public debates about Tesla and Musk. As described above,
Musk’s statements were related to Hothi’s improper methods for
obtaining the supposed “information” he was disseminating to the
public, including by harassing Tesla employees. (See, supra, Section
I(B)(2); Copp, supra, 45 Cal.App.4th at 846 [statements about plaintiff
“were germane to the public controversy [because] [t]he public
needed to know whether there was reason to listen to him”];
Waldbaum, supra, 627 F.2d at 1298 [holding that statements about
plaintiff were germane to controversy because it “could have been
relevant to the public’s decision whether to listen to him”].)
59
Document received by the CA 1st District Court of Appeal.
controversy, and they were directly concerning Hothi’s participation
PDF Page 61
Third, Musk’s statements were related to the public debate
about the treatment of Tesla’s critics, including Hothi. Musk was
defending himself and Tesla from Greenspan’s assertions on this
topic, pointing out that Tesla had not “mistreated” anyone and that
instead it was Hothi who had acted improperly. (See, supra, Section
I(B)(2); Ampex, supra, 128 Cal.App.4th at 1578 [finding statements
were germane to controversy where defendant’s comments were
Finally, Musk’s statements were related to the conduct of the
$TSLAQ group. As a member of that group, and by his own accord,
Hothi’s actions furthered $TSLAQ ‘s publicly-stated goals to harm
the company and send Musk to jail. (See, supra, Section I(B)(2); See
Copp, supra, 45 Cal.App.4th at 846 [plaintiff’s participation in
controversy germane].)
***
Because (a) there was a public controversy; (b) Hothi inserted
himself into that debate; and (c) Musk’s statements were germane,
60
Document received by the CA 1st District Court of Appeal.
counter to plaintiff’s version of events].)
PDF Page 62
Hothi is a limited purpose public figure and the actual malice
standard applies to Musk’s email.
C.
Hothi Did Not Establish that Musk Acted with
Malice.
1.
Hothi Did Not Present Any Evidence
Contradicting Musk’s Prima Facie Showing.
Actual malice . . . requires at a minimum that the
statements were made with a reckless disregard
for the truth. And although the concept of
reckless disregard cannot be fully encompassed
in one infallible definition, we have made clear
that the defendant must have made the false
publication with a high degree of awareness of . .
. probable falsity, or must have ‘entertained
serious doubts as to the truth of his publication.’
(212 Cal.App.4th at 562–63, citations omitted; see also St. Amant v.
Thompson (1968) 390 U.S. 727, 731-32 [establishing actual malice
requires “sufficient evidence to permit the conclusion that the
defendant in fact entertained serious doubts as to the truth of his
publication.”], emphasis added.)
There cannot be a finding of actual malice “‘[w]here the
[allegedly defamatory information] comes from a known reliable
61
Document received by the CA 1st District Court of Appeal.
As the Court of Appeal held in Young v. CBS Broad., Inc.:
PDF Page 63
source and there is nothing in the circumstances to suggest
inaccuracy.” (Reader’s Digest, supra, 37 Cal.3d at 259; Jackson, supra,
68 Cal.App.4th at 26 [statement made “on the basis of information
provided by a single reliable source precludes a finding of actual
malice”]; Christian Research Inst. v. Alnor (2007) 148 Cal.App.4th 71,
91 (Christian Research) [no actual malice where information was
purportedly obtained from an effectively anonymous source in the
Musk based his statements on reports he had received from
Tesla employees that Hothi was harassing Tesla employees, and had
sideswiped one. (1 AA 69:9-18, 69:25-70:12 [Musk Decl., ¶¶ 4-5, 7].)
Hothi did not present any evidence that Musk’s reliance on such
information was unreasonable, and Musk had no obligation to
investigate the reports further. These facts preclude a finding of
malice. (See Reader's Digest, supra, 37 Cal.3d at 259.)
But Musk had even more reason to trust the reliability of the
sources reporting on Hothi’s harassment and striking a Tesla
employee with his car—prior to Musk’s email to Greenspan, those
62
Document received by the CA 1st District Court of Appeal.
postal inspector’s office].)
PDF Page 64
same sources had filed a police report and had provided sworn
declarations under oath regarding Hothi’s harassment and the
February 21, 2019 incident, on which Musk relied. (2 AA 215-21
[RJN, Ex. B, TRO Petition].)
As such, Musk’s statements were not “patently completely at
odds with the actual events,” (Walker v. Kiousis (2001) 93 Cal.App.4th
1432, 1446), “fabricated by the defendant,” or “so inherently
circulation,” (Annette F., supra, 119 Cal.App.4th at 1170), so as to
demonstrate that Musk made them with malice.12
2.
The Court Erred in Finding Malice Based Solely
on Musk’s Alleged Dislike of Hothi.
In addition, even false statements that have “some element
of truth to them” do not rise to the level of malice. (Annette F., supra,
119 Cal.App.4th at 1170 [no malice found based on incorrect
statement that plaintiff had been “convicted” of domestic violence
because family court found that she had engaged in violence; “[a]t
the most, [there was a] speculative possibility that [defendant] might
have known or suspected that her use of the word convicted was
technically incorrect. Such a speculative possibility falls short of
clear and convincing evidence.”].)
12
63
Document received by the CA 1st District Court of Appeal.
improbable that only a reckless man would have put them in
PDF Page 65
Hothi’s argument below, which the trial court adopted, was
that Hothi had presented sufficient evidence of malice based on
“showing that the publication was motivated by hatred or ill will
towards the plaintiff.”
(7 AA 634:3-23 [Opp. at 15]; 8 AA 832
[1/27/21 Order at p. 4] [citing only to Tesla’s TRO application,
Musk’s unrelated Twitter post of an Internet meme the same day as
the TRO filing (which Hothi speculates was about him), and
theorist”].)
However, the Constitutional malice standard, which Hothi
must meet here, is different and requires that he show Musk “made
the objectionable statement with malice in its constitutional sense,
that is, with knowledge that it was false or with reckless disregard of
whether it was false or not. The test is a subjective test, under which
the defendant’s actual belief concerning the truthfulness of the
publication is the crucial issue. This test directs attention to the
defendant's attitude toward the truth or falsity of the material
published, not the defendant's attitude toward the plaintiff.”
64
Document received by the CA 1st District Court of Appeal.
statements in Musk’s motion that Hothi was a “conspiracy
PDF Page 66
(McGarry v. Univ. of San Diego (2007) 154 Cal.App.4th 97, 114,
emphasis added, quotations omitted; Edwards v. Hall (1991) 234
Cal.App.3d 886, 900 [“[W]e shall use the term ‘constitutional malice’
instead of ‘actual malice’ so as to avoid the misplaced notion . . . that
a showing of spite or ill will may satisfy a public figure plaintiff’s
burden of proof.”]; Kashian v. Harriman (2002) 98 Cal.App.4th 892,
915 [“constitutional malice may not be inferred solely from evidence
supra, 119 Cal.App.4th at 1168 [“actual malice may not be inferred
solely from evidence of personal spite, ill will, or bad motive”].)
Here, Hothi cited no evidence to meet the (correct) standard
which required that Musk knew his statements were false or had a
reckless disregard for the truth. Musk relied on employee reports
and the sworn statements of Tesla employees. That is enough to
establish a lack of malice, and Hothi provided no contrary evidence.
(See, e.g., Reader’s Digest, supra, 37 Cal.3d. at 259; Christian Research,
supra, 148 Cal.App.4th at 91.)
***
65
Document received by the CA 1st District Court of Appeal.
of hatred, spite, ill will, or desire to injure the plaintiff”]; Annette F.,
PDF Page 67
Because Hothi was a limited purpose public figure, he had to
establish a probability that he would prove with clear and
convincing evidence that Musk made his statements with actual
malice. Hothi provided no such evidence, and, as a result, the trial
court should have granted Musk’s special motion to strike.
III.
MUSK IS ENTITLED TO HIS ATTORNEYS’ FEES.
“The anti-SLAPP statute requires an award of attorney fees to a
Cal.App.4th 659, 685, emphasis in original; see Cal. Code Civ. Proc.
§ 425.16(c) [“a prevailing defendant on a special motion to strike
shall be entitled to recover his or her attorney’s fees and costs”].)
The fees to which a prevailing defendant is entitled include fees and
costs incurred on appeal. (City of Alhambra v. D’Ausilio (2011) 193
Cal.App.4th 1301, 1309 [“The right to attorney fees extends to
attorney fees on appeal as well.”], internal quotations and citation
omitted; Dove Audio, Inc. v. Rosenfeld, Meyer & Susman (1996) 47
Cal.App.4th 777, 785 [same].)
Accordingly, Musk respectfully requests that the Court
66
Document received by the CA 1st District Court of Appeal.
prevailing defendant.” (Paulus v. Bob Lynch Ford, Inc. (2006) 139
PDF Page 68
instruct the trial court to award Musk the attorneys’ fees he has
incurred in defending this action, both below and on this appeal.
(Paiva v. Nichols (2008) 168 Cal.App.4th 1007, 1038 [remanding
matter to trial court “to enter an order granting the motions to strike,
and to conduct proceedings as appropriate to determine costs and
reasonable attorney fees, including attorney fees on appeal, to be
awarded to appellants”].)
Musk respectfully requests that the Court reverse the trial
court’s order denying Musk’s special motion to strike and remand
with instructions that the trial court grant the motion to strike,
dismiss Hothi’s Complaint with prejudice, and award Musk the
attorneys’ fees he has incurred in defending this action.
67
Document received by the CA 1st District Court of Appeal.
Conclusion
PDF Page 69
Respectfully submitted,
ALEX SPIRO
(pro hac vice admission pending)
MICHAEL T. LIFRAK
QUINN EMANUEL URQUHART
& SULLIVAN, LLP
865 S. Figuero St., 10th Floor
Los Angeles, CA 90017
Telephone: (213) 443-3000
Facsimile: (213) 443-3100
alexspiro@quinnemanuel.com
michaellifrak@quinnemanuel.com
Counsel for Defendant-Appellant Elon Musk
68
Document received by the CA 1st District Court of Appeal.
Dated: June 10, 2021
PDF Page 70
CERTIFICATE OF COMPLIANCE WITH RULE 8.204
I certify that, pursuant to California Rule of Court 8.204, the
attached Appellant’s Brief contains 10,515 words, as determined by a
computer word count.
Respectfully submitted,
ALEX SPIRO
(pro hac vice admission pending)
MICHAEL T. LIFRAK
QUINN EMANUEL URQUHART
& SULLIVAN, LLP
865 S. Figuero St., 10th Floor
Los Angeles, CA 90017
Telephone: (213) 443-3000
Facsimile: (213) 443-3100
alexspiro@quinnemanuel.com
michaellifrak@quinnemanuel.com
Counsel for Defendant-Appellant Elon Musk.
69
Document received by the CA 1st District Court of Appeal.
Dated: June 10, 2021
PDF Page 71
DECLARATION OF SERVICE
STATE OF CALIFORNIA, COUNTY OF LOS ANGELES
At the time of service, I was over 18 years of age and not a
party to this action. I am employed in the County of Los Angeles,
State of California. My business address is 865 South Figueroa Street,
10th Floor, Los Angeles, CA 90017-2543.
Lawrence J. Fossi
25 Hawthorn Lane
Bozeman, MT 59715
Lawrence.fossi@outlook.com
Law Office of D. Gill Sperlein
345 Grove Street
San Francisco, CA 94102
gill@sperleinlaw.com
BY ELECTRONIC MAIL TRANSMISSION: By electronic mail
transmission from jeaninezalduendo@quinnemanuel.com on June
10, 2021 by transmitting a PDF format copy of such documents to
counsel for the parties at the e-mail address listed above, per
agreement between the parties regarding electronic mail service.
The documents were transmitted by electronic transmission and
such transmission was reported as complete and without error.
BY TRUE FILING: By the Court’s True Filing system.
I declare under penalty of perjury under the laws of the State
of California that the foregoing is true and correct.
Executed on June 10, 2021, at Los Angeles, California.
Jeanine Zalduendo
70
Document received by the CA 1st District Court of Appeal.
On June 10, 2021, I served true copies of the following
document(s) described as APPELLANT’S OPENING BRIEF on the
interested parties in this action as follows: