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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 APPENDIX
VOLUME III OF VIII, PAGES AA259 TO AA325
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
AA259
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Defendant-Appellant. |
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Randeep Hothi v. Elon Musk
First Appellate District Court of Appeal, Case No. A162400
(Alameda County Superior Court Case No. RG20069852)
APPELLANT’S APPENDIX
CHRONOLOGICAL INDEX
Description
Date
01
Verified Complaint for Damages
and Demand for Jury Trial Filed
by Randeep Hothi
Defendant Elon Musk’s Answer
and Affirmative Defenses to the
Verified Complaint of Plaintiff
Randeep Hothi
Defendant Elon Musk’s Motion
to Strike the Complaint Pursuant
to Cal. Code. Civ. Proc. Section
425.16; Memorandum of Points
and Authorities in Support
Thereof
Declaration of Christine Leslie in
Support of Defendant Elon
Musk’s Motion to Strike the
Complaint Pursuant to Cal. Code.
Civ. Proc. Section 425.16
Declaration of Elon Musk in
Support of Defendant Elon
Musk’s Motion to Strike the
Complaint Pursuant to Cal. Code.
Civ. Proc. Section 425.16
Declaration of Tyler James in
Support of Defendant Elon
Musk’s Motion to Strike the
02
03
04
05
06
AA260
Page No.
08/04/2020
Vol.
No.
I
09/28/2020
I
AA023
10/30/2020
I
AA034
10/30/2020
I
AA057
10/30/2020
I
AA068
10/30/2020
I
AA084
AA010
Document received by the CA 1st District Court of Appeal.
Ex. No. |
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08
09
10
11
12
AA261
10/30/2020
I
AA087
10/30/2020
II
AA160
10/30/2020
III
AA268
10/30/2020
IV
AA335
10/30/2020
V
AA400
10/30/2020
VI
AA547
Document received by the CA 1st District Court of Appeal.
07
Complaint Pursuant to Cal. Code.
Civ. Proc. Section 425.16
Declaration of Jeanine Zalduendo
in Support of Defendant Elon
Musk’s Motion to Strike the
Complaint Pursuant to Cal. Code.
Civ. Proc. Section 425.16
Defendant Elon Musk’s Request
for Judicial Notice in Support of
His Motion to Strike the
Complaint Pursuant to Cal. Code.
Civ. Proc. Section 425.16, and
Exhibits A-F thereto
Exhibit G (part 1) to Defendant
Elon Musk’s Request for Judicial
Notice in Support of His Motion
to Strike the Complaint Pursuant
to Cal. Code. Civ. Proc. Section
425.16
Exhibit G (part 2) to Defendant
Elon Musk’s Request for Judicial
Notice in Support of His Motion
to Strike the Complaint Pursuant
to Cal. Code. Civ. Proc. Section
425.16
Exhibits H-I to Defendant Elon
Musk’s Request for Judicial
Notice in Support of His Motion
to Strike the Complaint Pursuant
to Cal. Code. Civ. Proc. Section
425.16
Exhibits J-L to Defendant Elon
Musk’s Request for Judicial
Notice in Support of His Motion
to Strike the Complaint Pursuant |
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14
15
16
17
18
19
20
AA262
10/30/2020
VII
AA609
11/03/2020
VII
AA612
01/12/2021
VII
AA616
01/12/2021
VII
AA636
01/12/2021
VIII
AA773
01/20/2021
VIII
AA781
01/20/2021
VIII
AA797
01/20/2021
VIII
AA802
Document received by the CA 1st District Court of Appeal.
13
to Cal. Code. Civ. Proc. Section
425.16
[Proposed] Order Granting
Defendant Elon Musk’s Motion
to Strike the Complaint Pursuant
to Cal. Code Civ. Proc. Section
425.16
Notice of Errata Regarding the
Signature Page to the Declaration
of Elon Musk’s Motion to Strike
the Complaint Pursuant to Cal.
Code Civ. Proc. Section 425.16
Plaintiff Randeep Hothi’s
Memorandum in Opposition to
Plaintiff Elon Musk’s Special
Motion to Strike
Declaration of Randeep Hothi in
Support of His Opposition to
Defendant’s Special Motion to
Strike
Plaintiff Randeep Hothi’s
Objections to Defendant’s
Evidence Submitted in Support of
Defendant’s Special Motion to
Strike
Reply in Support of Defendant
Elon Musk’s Motion to Strike the
Complaint Pursuant to Cal. Code
Civ. Proc. Section 425.16
Elon Musk’s Evidentiary
Objections to the Declaration of
Randeep Hothi
Defendant Elon Musk’s
Responses to Plaintiff Randeep
Hothi’s Evidentiary Objections |
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22
23
24
25
Plaintiff Randeep Hothi’s
Response to Elon Musk’s
Evidentiary Objections to the
Declaration of Randeep Hothi
Order - Motion to Strike
Complaint Denied
Notice of Appeal
Appellant’s Notice Designating
Record on Appeal
Register of Actions and
Certificate
01/22/2021
VIII
AA822
01/27/2021
VIII
AA829
03/24/2021
04/01/2021
VIII
VIII
AA835
AA837
05/11/2021
VIII
AA842
Document received by the CA 1st District Court of Appeal.
21
AA263 |
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Randeep Hothi v. Elon Musk
First Appellate District Court of Appeal, Case No. A162400
(Alameda County Superior Court Case No. RG20069852)
APPELLANT’S APPENDIX
ALPHABETICAL INDEX
Description
Date
24
Appellant’s Notice Designating
Record on Appeal
Declaration of Christine Leslie in
Support of Defendant Elon
Musk’s Motion to Strike the
Complaint Pursuant to Cal. Code.
Civ. Proc. Section 425.16
Declaration of Elon Musk in
Support of Defendant Elon
Musk’s Motion to Strike the
Complaint Pursuant to Cal. Code.
Civ. Proc. Section 425.16
Declaration of Jeanine Zalduendo
in Support of Defendant Elon
Musk’s Motion to Strike the
Complaint Pursuant to Cal. Code.
Civ. Proc. Section 425.16
Declaration of Randeep Hothi in
Support of His Opposition to
Defendant’s Special Motion to
Strike
Declaration of Tyler James in
Support of Defendant Elon
Musk’s Motion to Strike the
Complaint Pursuant to Cal. Code.
Civ. Proc. Section 425.16
04
05
07
16
06
AA264
Page No.
04/01/2021
Vol.
No.
VIII
10/30/2020
I
AA057
10/30/2020
I
AA068
10/30/2020
I
AA087
01/12/2021
VII
AA636
10/30/2020
I
AA084
AA837
Document received by the CA 1st District Court of Appeal.
Ex. No. |
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03
08
20
19
09
10
11
Defendant Elon Musk’s Answer
and Affirmative Defenses to the
Verified Complaint of Plaintiff
Randeep Hothi
Defendant Elon Musk’s Motion
to Strike the Complaint Pursuant
to Cal. Code. Civ. Proc. Section
425.16; Memorandum of Points
and Authorities in Support
Thereof
Defendant Elon Musk’s Request
for Judicial Notice in Support of
His Motion to Strike the
Complaint Pursuant to Cal. Code.
Civ. Proc. Section 425.16, and
Exhibits A-F thereto
Defendant Elon Musk’s
Responses to Plaintiff Randeep
Hothi’s Evidentiary Objections
Elon Musk’s Evidentiary
Objections to the Declaration of
Randeep Hothi
Exhibit G (part 1) to Defendant
Elon Musk’s Request for Judicial
Notice in Support of His Motion
to Strike the Complaint Pursuant
to Cal. Code. Civ. Proc. Section
425.16
Exhibit G (part 2) to Defendant
Elon Musk’s Request for Judicial
Notice in Support of His Motion
to Strike the Complaint Pursuant
to Cal. Code. Civ. Proc. Section
425.16
Exhibits H-I to Defendant Elon
Musk’s Request for Judicial
AA265
09/28/2020
I
AA023
10/30/2020
I
AA034
10/30/2020
II
AA160
01/20/2021
VIII
AA802
01/20/2021
VIII
AA797
10/30/2020
III
AA268
10/30/2020
IV
AA335
10/30/2020
V
AA400
Document received by the CA 1st District Court of Appeal.
02 |
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23
14
22
15
17
21
13
AA266
10/30/2020
VI
AA547
03/24/2021
11/03/2020
VIII
VII
AA835
AA612
01/27/2021
VIII
AA829
01/12/2021
VII
AA616
01/12/2021
VIII
AA773
01/22/2021
VIII
AA822
10/30/2020
VII
AA609
Document received by the CA 1st District Court of Appeal.
12
Notice in Support of His Motion
to Strike the Complaint Pursuant
to Cal. Code. Civ. Proc. Section
425.16
Exhibits J-L to Defendant Elon
Musk’s Request for Judicial
Notice in Support of His Motion
to Strike the Complaint Pursuant
to Cal. Code. Civ. Proc. Section
425.16
Notice of Appeal
Notice of Errata Regarding the
Signature Page to the Declaration
of Elon Musk’s Motion to Strike
the Complaint Pursuant to Cal.
Code Civ. Proc. Section 425.16
Order - Motion to Strike
Complaint Denied
Plaintiff Randeep Hothi’s
Memorandum in Opposition to
Plaintiff Elon Musk’s Special
Motion to Strike
Plaintiff Randeep Hothi’s
Objections to Defendant’s
Evidence Submitted in Support of
Defendant’s Special Motion to
Strike
Plaintiff Randeep Hothi’s
Response to Elon Musk’s
Evidentiary Objections to the
Declaration of Randeep Hothi
[Proposed] Order Granting
Defendant Elon Musk’s Motion
to Strike the Complaint Pursuant
to Cal. Code Civ. Proc. Section
425.16 |
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18
01
Register of Actions and
Certificate
Reply in Support of Defendant
Elon Musk’s Motion to Strike the
Complaint Pursuant to Cal. Code
Civ. Proc. Section 425.16
Verified Complaint for Damages
and Demand for Jury Trial Filed
by Randeep Hothi
05/11/2021
VIII
AA842
01/20/2021
VIII
AA781
08/04/2020
I
AA010
Document received by the CA 1st District Court of Appeal.
25
AA267 |
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Document received by the CA 1st District Court of Appeal.
Exhibit Number 09
EXHIBIT G
AA268 |
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3
4
5
D. GILL SPERLEIN, SBN 172887
THE LAW OFFICE OF D. GILL SPERLEIN
345 Grove Street
San Francisco, CA 94102
Telephone: ( 415) 404-6615
Facsimile: (415) 404-6616
gill@sperleinlaw.com
Attorneys for Respondent
6
SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF ALAMEDA
7
8
) Case No. RG19015770
9
)
Tesla, Inc.,
11
12
13
Petitioner,
V.
Randeep Hothi,
14
Respondent.
15
16
17
)
)
)
)
)
)
)
)
)
)
)
)
)
)
RESPONDENT RANDEEP HOTHl'S
NOTICE OF MOTION AND MOTION
FOR REASONABLE EXPENSES
INCLUDING ATTORNEY'S FEES
PURSUANT TO CODE OF CIVIL
PROCEDURE 128.5; MEMORANDUM OF
POINTS AND AUTHORITIES IN
SUPPORT
Date: September 5, 2019
Time: 9:00 a.m.
Courtroom: 511
Judicial Officer: The Hon. Jeffrey S. Brand
Reservation No.: R-2105541
18
19
20
21
TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD:
PLEASE TAKE NOTICE that on September 5, 2019, at 9 a.m. or as soon thereafter as
counsel may be heard in Department 511 of this Court, located at Hayward Hall of Justice, 24405
22
Amador Street, Hayward, CA 94544, Respondent Randeep Hothi shall and hereby does move for an
23
24
25
-order requesting reasonable expenses including attorney's fees (Fee Motion) against Petitioner Tesla,
Inc. pursuant to Code of Civil Procedure §128.5.
26
27
28
-iRESPONDENT RANDEEP HOTH I'S NOTICE OF MOTION FOR FEES UNDER CCP §128.7
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l
This morion is brought pmsuant to Code of Civil Procedure § 128.5 on the ground that the
2
Petition for Workplace Violence Restraining Order was frivolous and presented in bad faith and for
3
tht:: improper purpose of harassing Ramteep Hothi.
4
5
6
This motion is based upon this Notice of Motion, the supporting Memorandum of Points and
Authorities, the attached declarations of LawTence Fossi, Randeep Hothi, Aaron Greenspan, and D.
Gil1 Sperlein, and the complete files and recor;ds of this action.
7
8
Respectfully submitted,
9
10
11
=
D. Gill S pt:tj_gi
..
~6:"VOrrrcrfa
D . Gru. SPERLE)t,;
Attorneys for Respondent Randeep Hothi
17
18
19
20
21
22
?"
_.)
24
25
26
27
28
-iiRESPONDENT R.o.NDEEP l-lor111·s NOTICE OF M(Yl'ION FOR FEES UNDER CCP
AA270
*128.7
Document received by the CA 1st District Court of Appeal.
Date: August 13, 2019 |
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2
3
4
5
D. GILL SPERLEIN, SBN 172887
THE LAW OFFICE OF D. GILL SPERLEIN
345 Grove Street
San Francisco, CA 94102
Telephone: (415) 404-6615
Facsimile: (415) 404-6616
gil l@ sperleinlaw.com
Attorneys for Respondent
6
SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF ALAMEDA
7
8
) Case No. RG19015770
9
Tesla, Inc.,
11
12
13
Petitioner,
V.
Randeep Hothi,
14
Respondent.
15
uL
16
17
)
)
)
)
)
)
)
MEMORANDUM OF POINTS AND
AUTHORITIES IN SUPPORT OF
RESPONDENT RANDEEP HOTHl'S
MOTTON FOR REASONABLE
EXPENSES INCLUDING ATTORNEY'S
FEES PURSUANT TO CODE OF CIVIL
PROCEDURE 128.5;
)
)
)
)
)
)
Date: September 5, 2019
Time: 9:00 a.m.
Courtroom: 511
Judicial Officer: The Hon. Jeffrey S. Brand
Reservation N o.: R-2105541
18
19
20
21
22
23
24
25
26
27
28
-iRESPONDENT RANDEEP HOTHl'S NOTICE OF MOTION FOR EXPENSES AND ATTORNEY'S FEES UNDER C CP § 128.5
AA271
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Table of Contents
2
4
I.
INTRODUCTION......................................................................................................................... I
II. FACTUAL AND PROCEDURAL BACKGROUND ................................................................ 1
A.
Hothi's History as a Citizen Journalist............................................................•..•................................ 1
B.
April 16, 2019 Event Triggers Tesla's TRO Application ................................................................... 2
6
C.
Tesla Files its TRO Application with No Notice to Hothi .................................................................. 2
7
D. The Inevitable Media Reaction Causing Hothi Immediate Reputational Damage ......................... 3
E. Tesla Refuses to Provide Recordings of Hothi's Allegedly Violent Behavior .................................. 3
5
8
F.
9
Over Tesla's Objections, the Court Orders Limited Discovery ........................................................ 5
10
G. Tesla Renews Its Efforts to Block Discovery & Exclude the Press ................................................... 6
H. The Court Clarifies its Discovery Order and Promises Prior In Camera Review ........................... 7
11
I.
12
13
14
Tesla Drops Its Lawsuit after Taking a Parting Shot at Hothi........•................................................. 8
III. LEGAL ARGUMENT .................................................................................................................. 8
A.
Given Hothi's Legitimate Purpose, Tesla's Petition Was, on its Face, Frivolous ............................ 9
B.
Tesla Filed the Petition in Bad Faith.................................................................................................. 10
i.
Tesla Failed to Provide Hothi with Notice of the TRO Hearing ................................................. 10
15
ii.
Tesla Failed to Support its Claims ................................................................................................. 10
16
iii.
Tesla and Its CEO Elon Musk Have a History of Silencing Critics............................................ 13
17
iv.
Tesla's CEO Continues to Defame Hothi...................................................................................... 14
18
IV. CONCLUSION ........................................................................................................................... 15
19
20
21
22
23
24
25
26
27
28
-iiRESPONDENTRANDEEP HOTHl'S NOTICE OF MOTION FOR EXPENSES AND ATTORNEY'S FEES UNDER CCP § 128.5
AA272
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Table of Authorities
1 '
' I,
i
2,
3
CASES
4
580 Folsom Assocs. v. Prometheus Dev. Co; (1990) 223 Cal.App.3d 1.. ............................................. 1 l
5
Brewster v. Southern Pacific Transportation Co. (1991) 235 Cal.App.3d 701. ................................... 10
6
Estate ofHearst (1977) 67 Cal. App.3d 777 ........................................................................................ 11
7
Frank Annino & Sons Constr. v. McArthur Rests. (1989) 215 Cal.App.3d 353 ................................... l 1
9
Huntingdon Life Sciences, Inc. v. Stop Huntingdon Animal Cruelty USA, Inc. (2005)
129 Cal. App. 4th 1228 ........................................................................................................................ 7
Kaiser Found. Hospitals v. Wilson (2011), 201 Cal. App. 4th 550 ................................... .................... 11
10
Nemecek & Cole v. Hom (2012) 208 Cal.App.4th 41.. ......................................................................... 15
11
PLCM Group, Inc. v. Drexier (2000) 22 Cal.4th 1084 .......................................................................... 14
12
Syers Properties 111, Inc v. Rankin (2014) 226 Cal.App.4th 691.. ........................................................ 15
13
STATUTES
14
15
u
16
Code of Civil Procedure§ 527.8 ................................................................................................... 6, 9, 11
Code of Civil Procedure §128.5 .............................................................................................................. l
17
18
19
20
21
22
23
24
25
26
27
28
-iiiRESPONDENT RANDEEP HOTHI 'S NOTICE OF MOTION FOR EXPtNSES AND A fTORNEY'S FEES UNDER CCP § 128.5
AA273
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MEMORANDUM OF POINTS AND AUTHORITIES
2
I. INTRODUCTION
3
Respondent Randeep Hothi seeks to recover from Petitioner Tesla, Inc. his reasonable
4
expenses, including attorney's fees under Code of Civil Procedure § 128.5. A trial court may order a
5
party, the party' s attorney, or both, to pay the reasonable expenses, including attorney's fees, incurred
6
by another party as a result of actions or tactics, made in bad faith, that are frivolous or solely
7
8
9
-' HJ
intended to cause unnecessary delay. Because Hothi's data collection activities served a legitimate
purpose, the Petition was objectively frivolous. Moreover, the record clearly demonstrates that Tesla
brought this action in bad faith. Tesla never intended to properly prosecute the Petition. Rather,
C
~.
(1)
11
Tesla's objective of discrediting a vocal critic was satisfied once the Petition was filed and widely
12
distributed. Since Tesla advanced a frivolous claim in bad faith, the Court should grant this motion
13
(1) •
~
- .
14
u,..
16
(f)
~
al.
and order Tesla to pay Hothi's reasonable expenses, including attorney's fees.
IL FACTO AL AND PROCEDURAL BACKGROUND
15
A. Hothi's History as a Citizen Journalist
17
Hothi is a member of the so-called $TSLAQ, a wide-ranging group of people who are
18
skeptical about the Tesla business enterprise and who regularly share information on the social media
19
platform Twitter. (Declaration of Randeep Hothi in support of Fee Motion (Hothi Deel.) at 12) Hothi
20
21
came to prominence during 2018 for his accurate observations about Tesla Model 3 production rates,
which contradicted emphatic promises made by Tesla's celebrity CEO, Elon Musk. (Id. at ,is) The
22
value of Hothi's data on Tesla production was recognized even by the Tesla owners and fans who
23
24
post regularly at the Tesla Motors Club site. (Id. at ~7, Exhibit C) 1
25
26
27
28
1
~
Generally, Exhibits have been lettered sequentially in the order in which they appear in the attached
supporting declarations - not the order in which they appear in the Memorandum. One exception is Exhibit P
to the Sperlein Declaration, which was added after the other declarations were finalized and is therefore not in
sequence.
- 1MEMORANDUM OF POINTS AN L> AUTI JORITIES JN SUPPORT OF R AN DEEP HOTH!. S MOTION FOR FEES CCP § 128.5
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B. April 16, 2019 Event Triggers Tesla's TRO Application
2
On April 16, 2019, Hothi, who was driving o n Interstate 880 near Fremont, noticed a Tesla
3
Model 3 with manufacturer plates enter the highway. (Id. at 1[7) The Model 3 had camera mounted to
4
the exteri.or and another camera moun.ted inside. (Id.) Aware Tesla had announced an " Investor
5
Autonomy Event" for April 22, 2019 at which it would tout its " autonomous driving" capabilities,
6
Hothi surmised the Model 3 was engaged in public testing or taping for that event. (Id.) As the test
7
vehicle was also apparently headed toward San Francisco, Hothi observed the car for a half hour or
8
so, recording video and taking photos. (Id.)
10
Shortly thereafter, Hothi (using his @skabooshka handle) posted his information on Twitter.
11
Tellingly, even one of the most historically pro-Tesla on-line publications, electrek.co, regarded
12
Hothi' s postings as important Tesla news. Within hours of the Hothi postings, electrek.co published
13
an article acknowledging that Hothi ' s Twitter posts appeared related to testing being conducted in
14
preparation for the Investor Autonomy Event. In other words, on the very day that Hothi made his
15
16
Twitter posts about what he observed, an on-line publication historically sympathetic to Tesla
17
explained and confirmed exactly why a journalist would be interested in making precisely the
18
observations that Hothi had made.
19
20
21
C. Tesla Files its TRO Application with No Notice to Hothi
On April 19, 2019, Tesla obtained a temporary restraining order against Hothi. Tesla' s
Petition demonstrated on its face that Tesla knew Hothi's Twitter handle, his email address, his
22
physical address, his license plate number, his father 's name, and his brother's name. (D eclaration of
23
24
25
Christine Leslie in Support of Petition for Workplace Harassment Restraining Order (Leslie Deel.) at
§§ 1 & 2) Nonetheless, Tesla made no effort to notify Hothi of the hearing date. (Hothi Deel. at 1[12)
26
In its Petition, filed under§ CCP 527.8, Tesla claimed the Model 3 occupants "suffered actual
27
and threatened violence" while Hothi was film ing them. (Leslie Deel. at §3) Specifically, Tesla
28
-2MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF RANDEE!' HOTI 11·s MOTION FOR FEES CCP
AA275
*
128.5
Document received by the CA 1st District Court of Appeal.
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claimed that while following the Model 3, Hothi "swerve[ed] dangerously close to the vehicle"
2
causing the car's occupants to fear a collision. (Id.)
3
Tesla also claimed that, several months earlier, on February 21, in the parking lot of Tesla's
4
Fremont facility, Hothi had "hit Tesla's security employee" with his car and then " fled the scene" in a
5
"reckless manner" as he exited the parking lot. (Petition, Fonn WV-110 at §5) In the absence of an
6
appearance by Ilothi, the Cow·t entered a TRO on the same day Tesla made the filing, ordering Hothi
7
to stay at least 10 yards away from any Tesla vehicle with manufacturer plates within five miles of
8
10
11
12
13
14
T esla's Palo Alto headquarters and setting the matter down for a temporary injunction hearing on
May 7, 20 19.
D. The Inevitable Media Reaction Causing Hothi Immediate Rcputational Damage
Tesla's TRO set off a media firestorm. On-line publications closely aligned with Tesla
published articles that assumed the truth of Tesla's allegations of actual and threatened violence, or
assumed ajucige had we'rgh~ the evidence, or both. (Hothi Deel. at i!l3, Exhibits E, F, and G) major
15
16
17
news outlets, including Bloomberg and the Los Angeles Times, also published news stories about the
TRO, repeating Tesla's allegations. (Id. at i114)
18
Predictably, given Tesla's incendiary allegations, Hothi received a torrent of abuse on Twitter
19
and other social media, accusing him of being a terrorist, a criminal, and a homicidal maniac. (Id. at
20
,i 15, Exhibit I ) Some Tesla fanatics were not content merely to savage Hothi in the soclal media.
21
They also urged the University of Michigan, where Hothi is pursuing graduate studies, to expel him.
22
(Id. at ill 6, see also, May 17, 2019, Hothi Declaration in Support of Response to Petition, Ex. B)
23
24
E. Tesla Refuses to Provide Recordings of Hothi's Allegedly Violent Behavior
25
On May 1, 2019, Hothi, requested a continuance of the temporary injunction hearing.
26
(Sperlein Declaration in Support of Fee Motion (Sperlein Deel.) at ~2) In the continuance motion,
27
Hothi explained his role as a citizen journalist, detailed the importance of the Investor Autonomy Day
28
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in light of Tesla CEO Elon Musk's claim in early April that Tesla would have one million "robo
2
taxis" on the road within a year, and listed instances in which Tesla had retaliated against its critics.2
3
Hothi also asked the Court to allow limited discovery in advance of the temporary injunction hearing.
4
(Attachment 3(B)(4) to Ch- 115 Request to Continue Hearing, filed May 1, 2019)
5
6
The Court granted the continuance to May 21, 2019, stating that Hothi's " request for
discovery may be agreed upon by the parties or addressed at the hearing." The next day, May 2, Hothi
7
served a document request with 11 items. (Sperlein Deel. at i]2) Hothi sought all recordings Tesla had
8
made of both the February 21 and April 16 incidents. (Id.) He also sought police incident reports,
10
documents showing the alleged injury to the Tesla security officer, documents showing the Model 3
11
occupants were Tesla employees, and Tesla's file on him. (Id.) On May 10, Tesla counsel emailed
12
Hothi's counsel, declining to produce any documents, citing the general rule that in workplace
13
violence injunction cases, with their abbreviated time schedules, discovery is typically not allowed.
14
(Id. at i]3)
15
u
16
17
Rather than produce the recordings in its control which were required to establish its claims,
Tesla concocted a myriad of excuses for withholding the evidence. Tesla's lead counsel, relying on
18
his own declaration, claimed Hothi "and his followers" had "engaged in ' |
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The Alinder testimony is specious at best. Tesla itself identified the declarants and its legal
2
counsel in its Petition. There was no " |
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Tesla responded on June 3, opposing the discovery based on the rule that discovery is
2
generally not allowed in proceedings under CCP § 527.8. Tesla also objected to the discovery
3
requests, claiming undue burden, privacy, confidential business information, and attorney work
4
product. Further, Tesla sought to exclude the public and press from the temporary injunction hearing.
5
Tesla used its June 3 letter brief to take a gratuitous swipe at Hothi's counsel, insinuating he
6
was trying to run up legal fees (June 3, 2019 letter brief at p. 1, ifl) and falsely claimed that Hothi's
7
9
10
counsel had failed to offer legal support for the discovery requests. (Id. at p. 5, i!4). Tesla also
introduced into evidence a plainly inadmissible settlement communication. (Id. at p. 4, ill ; see also
Hothi' s May 5, 2019 letter brief at p. 2, ifl & Ex. A)
11
On July 1, 2019, the Court issued its ruling, finding that " limited discovery is appropriate on
12
the facts of this case." (July 1, 2019 Order on Requests for Discovery at p. 4: 12) The Court ordered
13
each party to produce all "photographic, audio, or video recordings of the alleged incidents on
14
February 21 and April I 6, 2019." (Id. at p. 5: 14-16) The Court noted, "[a]ny such recordings would
15
16
be directly relevant to the claims and defenses in this case." (Id. at p. 4:14-16) The Court denied
17
Hoth i's requests for other types of documents, explaining that while they might be relevant, they were
18
not "real time" documentation. Further, they might give rise to privilege issues and consequently
19
would not be consonant with "the quick and truncated procedure envisioned by the statutory scheme."
20
21
(Id. at p. 5: 1-11) The Court ordered each side to produce its recordings on or before Tuesday, July 16,
2019, which was 10 days in advance of the scheduled temporary injunction hearing. (Id. at p.
22
5: 14-18)
23
24
G. Tesla Renews Its Efforts to Block Discovery & Exclude the Press
25
On July 10, nine days after the Court's July 1 Order, new counsel substituted in for Tesla and
26
immediately filed a Motion for Clarification or Partial Reconsideration of July 1 Discovery Order and
27
for Protective Order (the "Motion for Clarification"). Tesla argued for the first time that the 40-
28
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minute audio track from the interior mounted camera contained discussions that were personal,
2
private, sensitive, and business-confidential and sought to exclude it altogether from the discovery
3
order. Tesla's proposed protective order went even further. It included an order that "[t]he recordings
4
shall not be viewed by any third party or made public in any manner, including in the courtroom at
5
6
the hearing in this matter, unless and as specifically authorized by further court order." ln other
words, Tesla renewed its effort to preclude any public or press scrutiny of any of its photographic,
7
video, or audio evidence.
8
Hothi filed his Opposition to the Motion for Clarification, urging that the audio recording was
10
of obvious relevance given that it would illuminate whether the occupants believed Hothi' s activities
11
served a "legitimate purpose" and whether they were such as to place a "reasonable person in fear for
Ct:
--~
Q)
12
his or her safety." (July 12, 20 19 Opposition to Motion for Reconsideration at p. 3:9-27. See
-c
~
(l) •
13
Huntingdon Life Sciences, Inc. v. Stop Huntingdon Animal Cruelty USA, Inc. (2005) 129 Cal. App. 4 th
OJ:
14
l~
1228, 1255-1256 (the intent requirement for a true threat is that the respondent intentionally or
(j')
15
16
17
18
19
20
21
knowingly communicates the threat))
In his Opposition, Hothi offered this:
Tesla expresses concern that the audio recording may include "confidential business
information" about Tesla's technology or private details about the lives of the car's
occupants, yet offers no evidence to substantiate those concerns. Hothi is willing to
have Tesla furnish Hothi with a list of the portions of the audio recording that it wants
protected. If the parties cannot agree on protection of those portions, then the Court
can take the matter up in advance of or at the start of the July 26 hearing. (Id. at p.
4: 1-8)
22
Tesla never responded to Hothi 's offer.
23
24
H. The Court Clarifies its Discovery Order and Promises Prior In Camera Review
25
On July 18, the Court issued its Order on Motion to Clarify Order of 7/ 1/ 19 on Requests for
26
Discovery. In the July 18 Order, the Court confirmed the holdings of its July 1 Order, made clear that
27
the July l Order comprehended the Model 3 ' s integrated cameras and the cell phones of its
28
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occupants, and promised it would, in advance of the hearing, review Tesla's video recordings in
2
camera for relevance. (6-18-19 Order at pp. 2-3.) As for the audio track of the Model 3's occupants,
3
the Court also promised to review it prior to the hearing in camera for relevance. (Id. at p. 3: I 6-20)
4
Further, "[i]f Tesla asserts that the audio recording during the relevant time period contains
5
confidential information, then Tesla must make a more narrowly focused motion supported by
6
evidence." (Id. at p. 3:21-23) The July 18 Order indicated the Court would consider any motion to
7
9
seal as to recordings filed or submitted into evidence but made note of the case law creating a strong
I
presumption in favor of public access to court records in civil trials. (Id. at p. 4:2-22)
I. Tesla Drops Its Lawsuit after Taking a Parting Shot at Hothi
10
11
Pursuant to an earlier agreement between the parties, Tesla had until close of business on July
12
19 to produce its recordings. (Sperlein Deel. at 111) Hothi already had produced his recordings on
13
July 16. (Id.) Late in the day on July 19, Tesla's counsel submitted a letter to the Court indicating it
14
would withdraw its Petition. The letter stated, "Tesla had hoped not to have to choose in this instance
15
16
17
18
19
20
21
between protecting its employees' safety and exposing them to an invasion of their privacy." Tesla
claimed it was withdrawing its Petition to protect the privacy of those individuals. (7-19-19 letter to
the Court.)
Before submitting its letter to the Court and furnishing a copy to Hothi's counsel, Tesla made
certain to put its own spin on the dismissal by leaking information to yet another on-line Tesla
propaganda outlet, Tech Crunch, which published its article before Hothi's counsel even received the
22
July 19 letter. (Sperlein Deel. at i112, l!:xhibit K)
23
24
25
III. LEGAL ARGUMENT
CCP § 128.S(a) provides, in pertinent part:
26
A trial court may order a party, the party's attorney, or both, to pay the
27
reasonable expenses, including attorney's fees, incurred by another party as a
result of actions or tactics, made in bad faith, that are frivolous or solely intended
to cause unnecessary delay.
28
-8MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF RAN DEEP HOTH I'S MOTION FOR FEES CCP § 128.5
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CCP § 128.S(b)(l) defines "actions or tactics" to include, without limitation, "the making or
2
opposir~ of motio~_s" ot "th;~ filing and service of a complaint." Because the statute uses the
3
disjunctive "or," Hothi needs to demonstrate only that Tesla engaged in one of the three forms of
4
5
misconduct. Tesla's filing of the Petition was both in bad faith and frivolous.
6
A. Given Hothi's Legitimate Purpose, Tesla's Petition Was, on its Face, Frivolous
7
'"Frivolous,' means totally and completely without merit or for the sole purpose of harassing
8
an opposing party." (CCP § 128.5(b)(2)) The prosecution of a frivolous action may in itself be
9
evidence from which a finding of subjective bad faith may be made. (Llamas v. Diaz (1990) 218
10
Cal.App.3d 1043, 1047, fn. 9)
11
~
o__•,;
Cl) t~
-lf
O:ti.
.
D
13
Months before it filed its Petition, Tesla was already well aware of Hothi's work in
documenting the Model 3 production volumes. (See, Leslie Deel. at§l; May 21, 2019 Alinder Deel.
14
in support of Reply at ,is & Ex. A.) As a threshold matter, therefore, Hothi' s observation and
15
photography of the Tesla Model 3 on April 16, 2019 was for a "legitimate purpose" and was
16
objectively outside the ambit of CCP § 527.8.
17
Even the reporting of electrek.co, which has been historically highly sympathetic to Tesla, and
18
an outlet for many Tesla leaks, viewed Hothi's April 16 as a legitimate news gathering effort. (Hothi
19
20
Deel. at ,i10, Exhibit D)
21
Given the legitimate purpose of Hothi's activities, Tesla had options other than filing a
22
frivolous lawsuit. As to Hothi's presence on their Fremont facility, they could and did, issue a notice
23
of trespass. The proper and sensible course would have been for Tesla to show its recordings to the
24
25
California Highway Patrol and seek to have Hothi issued a moving violation for reckless driving. The
allegation of actual and threatened workplace violence was, from the very start, frivolous.
26
27
28
-9M EMORANDUM OF POINTS AND A UTHORIT IES IN SUPPORT OF RAN DEE? HOTl l!'S MOTION FOR rEES CCP §128.5
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1
2
B. Tesla Filed the Petition in Bad Faith.
i. Tesla Failed to Provide Hothi with Notice of the TRO Hearing
3
As set forth in section II(C) above, the face of Tesla's Petition demonstrated that it knew
4
Hothi's Twitter handle, his email address, his physical address, his license plate number, his father's
5
name, and h is brother's name. (Leslie Deel. at§§ l and 2) Nonetheless, Tesla made no effort to notify
6
Hothi of the hearing date. (Hothi Deel. at ~12) As set forth in its Petition, Tesla's explanation for not
7
notifying Hothi of the hearing was that " Respondent's course of conduct and behavior in stalking,
8
harassing, and assaulting Petitioner's employees are such great or irreparable harm is likely to occur
10
if immediate orders without notice are issued." (Petition at § 12) This statement does not explain why
11
counsel could not notify Hothi of the hearing. There is no excuse for not notifying Hothi of the
12
hearing so that h e could be present and represented by counsel. T hough sometimes legitimate reasons
13
exist for not notifying the target of a TRO, no such reasons existed here. Failure to notify the target of
14
a TRO is evidence of bad faith. (Brewster v. Southern Pacific Transportation Co. (1991) 235
15
16
17
Cal.App.3d 701, 714)
ii. Tesla Failed to Support its Claims
18
Tesla never intended to properly prosecute the Petition it filed against Hothi. At every step,
19
Tesla avoided having its allegations challenged or tested. First; Tesla failed to notify Hothi of the
20
TRO hearing. In fact, it is not clear that Tesla would have even served the Order on Hothi had he not
21
volunlarily appeared to defend himself. Hothi is not aware of any attempt to serve him. (Hothi Deel.
22
at ,i 12) T his also suggests that the purpose of the Petition was to silence Hothi.
23
24
Tesla's position regarding discovery and its eventual decision to volun tarily w ithdraw the
25
Petition make it clear that Tesla never intended to provide the audio and visual material that would be
26
necessary to prove the facts alleged in the Petition.
27
28
· 10 M EMORANDUM OF POINTS AND AUTIIORITIES IN SUPPORT OF RAN DEEP HOTHJ°S MOTION FOR FEES CCP § 128.5
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1
2
j,
Moreover, on the day of the scheduled hearing on the permanent restraining order, Tesla's
attorney not only had no intention of providing the necessary evidence, he also failed to bring a single
3 , fact 'Witness. (Sperlein Deel. at 115 and 6, Exhibit J) It is inconceivable that Tesla could meet the clear
4
5
6
and convincing standard without evidence or witnesses. "A complete lack of evidence to substantiate
key allegations of [a claim] is sufficient ground for imposition of sanctions for the filing of a
frivolous pleading." (580 Folsom Assocs. v. Prometheus Dev. Co. (1990) 223 Cal.App.3d 1, 22;
7
Frank Annino & Sons Constr. v. McArthur Rests. (1989) 215 Cal.App.3d 353, 359)
8
9
Moreover, Tesla's pretext for dismissal does not stand scrutiny. While California's expedited
10
process for obtaining a workplace violence TRO does allow for rapid issuance of the TRO based on
11
untested factual allegations, and indeed without any notice to the respondent, it does not by any
12
means promise that those attesting to the factual allegations will not be subject to cross-examination
·[.
.(])
'
-;::: i;-·
13
0-fr
14
.
al
"d~
15
.
(1) •
(/)
·-
at a public hearing. (Estate of Hearst (1977) 67 Cal. App.3d 777,784, "[i]fpublic court business is
conducted in private, it becomes impossible to expose corruption, incompetence, inefficiency,
16
prejudice, and favoritism. For this reason, traditional Anglo-American jurisprudence distrusts secrecy
17
in judicial proceedings and favors a policy of maximum public access to proceedings and records of
18
j udicial tribunals.")
19
To the contrary, CCP § 527.8U) explicitly requires the trial cou1t to "receive any testimony
20
that is relevant." It invites the court "to make an independent inquiry" - that is, to probe the testimony
21
offered by either respondent or petitioner. The applicable standard - "clear and convincing evidence
22
that the respondent engaged in unlawful violence or made a credible threat of violence" - is itself
23
24
ample notice to any party that its witnesses will be subj ect to cross-examination by the opposing party
25
and searching inquiry by the court. See Kaiser Found. Hospitals v. Wilson (2011), 201 Cal. App. 41h
26
550, 557 (The "plain language" of the statutory language, "any testimony that is relevant," indicates
27
"the Legislature intended to permit a trial court to consider all relevant evidence, including hearsay
28
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2
section 527.8.").
3
Here, Tesla had in its possession numerous video, audio, and photographic recordings which
4
were almost certain to be dispositive on the questions of whether Hothi: (a) on February 21 1
5
in~ationally struck a Tesla security officer and then rapidly sped off, and (b) on April 16, operated
6 ,..
·1tts car in
a manner so reckless as to evince an intent to endanger the Model 3 occupants. Hothi
7
emphatically denied both allegations. Police incident reports arising from the February 21 incident
8
9
supported Hothi's contention.
10
Tesla had evidence that unequivocally could have tagged Hothi as committing actual or
11
threatened violence. Yet it chose not to include such evidence with its TRO Petition and at every
12
point thereafter fought to prevent Hothi, this Court, the public, and the press from seeing such
13
evidence. If Tesla was not prepared to have its evidence tested, it should not have filed the Petition.
14
Filing the petition with no intent to properly prosecute the action is per se bad faith.
15
16
Tesla's pretext for dropping the case was the protection of the privacy of its employees. Tesla
17
is certainly not known for concern abm1t its employees' privacy. (See, e.g., When Elon Musk Tried to
18
Destroy a Tesla Whistleblower, Bloomberg, March 13, 2019. Even if Tesla were sincere, the privacy
19
of employees is not a valid excuse. Again, Tesla's attorneys understand how litigation works and if
20
they were unwilling to present their evidence, then they had no business filing the Petition.
:;n :
But beyond that, Tesla's excuse is not credible. The Tesla employees in the car on April 16,
22
2019 were there for one purpose - to demonstrate and record the Model 3's autopilot features. Those
23
24
employees knew they were being recorded with both an audio and a video track. Common sense tells
25
us they did not talk about anything deeply personal while they were on camera. It is simply a
26
ludicrous argument. This is especially true considering that the Court instructed the Parties that the
27
evidence would be reviewed in camera for relevance.
28
- 12 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT or- RANDF.EI' HOTI-IJ'S MOTION FOR FEES CCP § 128.5
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11
evidence, when deciding whether to issue an injunction to prevent workplace violence pursuant to |
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Finally, the Court was prepared to conduct an in camera review of all evidence before
2
allowing it to be proffered for admission, and Hothi had offered to allow Tesla to designate portions
3
of the audio track that were purely personal. In light of those safeguards, Tesla's privacy concerns
4
ring especially hollow.
5
iii. Tesla and Its CEO Elon Musk Have a History of Silencing Critics
6
In Hoth i's first filing, he provided an abundance of material evidencing Tesla's reputation for
7
9
silencing and intimidating detractors, critics, and whistle blowers. (May 1, 2019 Request to Continue
Hearing, Attachment 3(b)(4) pp. 4:7 -6: 14 and exhibits attached thereto)
10
Here, Respondent offers one additi~.,,:,(1fexamwe. Lawrence Fossi is a portfolio manager at a
11
family office in New York City. (Declaration of Lawrence J. Fossi in Support of Fee Motion (Fossi
12
Deel.) at iJ3) Beginning in late 2015, Fossi began writing about Tesla under the pseudonym "Montana
13
Skeptic" at a financial web site called Seeking Alpha. (Id.) His articles were generally critical of
14
Tesla, questioning its safety claims and evaluating its SEC filings. (Id.) Among other things, he wrote
15
16
17
that Tesla was "structurally bankrupt" - that is, unable to generate a sustainable profit despite
massive subsidies, and therefore dependent on continued debt and equity infusions. (Id.) At some
18
point in 2018, Fossi was " |
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30 |
1
2
silence their critics. The filing of the Petition in bad faith and with no intention of prosecuting the
claim is consistent with this pattern of abuse.
iv. Tesla's CEO Continues to Defame Hothi
3
4
As noted, Tesla's filing of the TRO quite predictably brought down obloquy on Hothi, who
5
emphatically denies Tesla's allegations. (Hothi Deel. at 1[9) Even now, after Tesla has voluntarily
6
dismissed the Petition against Hothi, Tesla's CEO, Elon Musk, continues to defame Hothi. In an
7
August 7 e-mail exchange, Musk stated on-the-record with the independent journalist and operator of
8
the non-profit public records website plainsite.org that Hothi "almost killed Tesla employees."
10
(Declaration of Aaron Greenspan in Support of Fee Motion at ,13, Exhibit 0) Even if all the
11
allegations in the Petition were trne (and they are not), the Petition never came close to suggesting
12
that Hothi "almost killed" any Tesla employee. Musk' s statement demonstrates his irrational level of
13
animosity towards Hothi. The animosity stemmed from Hothi having the audacity to criticize Tesla
14
and Musk, and it was that animosity that drove Tesla's decision to try silence this formidable critic by
15
16
17
18
19
20
21
22
23
24
inappropriately using legal process, while attempting to side-step the free speech protections of the
Constitutions of the United States and the State of California.
C. The Requested Fees Are Reasonable
In California, the prevailing party with an entitlement to recover reasonable attorneys' fees does
so based on the lodestar method. That is:
the fee setting inquiry in California begins with the "lodestar," i.e., the
number of hours reasonably expended multiplied by the reasonable hourly
rate. California courts have consistently held that a computation of time
spent in a case and the reasonable value of that time is fundamental to a
detennination of an appropriate attorneys' fee award.
25
(PLCM Group, Inc. v. Drexier (2000) 22 Cal.4th 1084, 1095 (citing Margolin v. Regional Planning
26
Com. (1982) 134 Cal.App.3d 999, 1005)) The "reasonable hourly rate" for attorney services is "that
27
prevailing in the community for similar work." (PLCM Group, supra, 22 Cal.App.4th at 1195) In an
28
- 14 -
MEMORANDUM
or POINTS AND A UTIIORIT l!:.:S IN SUPPORT OF RAN DEEP Horn1·s MOTION FOR FEES CCP *128.S
AA287
Document received by the CA 1st District Court of Appeal.
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effort to achieve some measure of predictability in the amount of fees that may be recovered by a
2
prevailing party, the First and Second District Courts of Appeal have approved the use of the Laffey
3
Matrix. promulgated by tbe U.S. Department of Justice, to establish hourly rates. (See e.g., Syers
4
Properties III, inc v. Rankin (2014) 226 Cal.App.4th 691; Nemecek & Cole v. Hom (201'.2) 208
5
6
Cal.App.4th 4 t) TI1e Laffey Matrix sets the hourly rate for attorneys with 20-plus years of expe1ience
at $899 even without the standard upward adjustment of 9% for attorneys in the San Francisco Bay
7
9
10
11
c •·.
12
13
Area. The $899 rate is well above the reasonable $550 per hour rate requested. (Sperlein Deel. at
if114-17) IIothi seeks $57,680 in fees and $4,049 in costs for a total of$61,729. (Id.) The amount <>f
time spent on the matter was reasonable in light of Tesla' s resistance to providing evidence.
.IV.CONCL USION
Because Tesla's actions and tactics in filing and pursuing t11is lawsuit were both in bad faith
and frivolous, Hothi respectfully requests that this Corni order Tesla to reimbllrse Hothi $61,729 in
14
=;
attorneys' fees and costs already incurred, plus any further attorneys' fees Hothi may incur if Tesla
15
l6
opposes this fee application.
17
18
Respectfully submitted,
19
20
21
Date: August 13, 2019
22
,.,..,
LJ
24
25
26
27
28
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MEMORAKDUM Of PO INTS AND AUTHORITIES IN S1.,rro RT OF RA:--:OEEP 1-1.0Tlll' S M OTION FOR f [[S C CP ~ 118.5
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AA289
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DECLARATION OF RANDEEP HOTHI |
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2
3
4
5
D. GILL SPERLEIN, SBN 172887
THE LAW OFFICE OF D. GILL SPERLEIN
345 Grove Street
San Francisco, CA 94102
Telephone: ( 415) 404-6615
Facsimile: (415) 404-6616
gill@sperleinlaw.com
Attorneys for Respondent
6
SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF ALAMEDA
7
8
10
Tesla, Inc. ,
11
c
12
13
Petitioner,
V.
Randeep Hothi,
14
Respondent.
15
16
)
)
)
)
)
)
)
)
)
)
)
)
)
)
Case No. RG19015770
DECLARATION OF RANDEEP HOTHI
IN SUPPORT OF RESPONDENT'S
MOTION FOR REASONABLE
EXPENSES INCLUDING ATTORNEY'S
FEES PURSUANT TO CODE OF CIVIL
PROCEDURE 128.5;
17
18
19
20
21
I, Randeep Hothi, Declare:
1.
I am over eighteen years of age and have personal knowledge of the facts below. If
called upon, I could and would testify to the following.
2.
I am a member of the so-called $TSLAQ, a wide-ranging group of people who are
22
skeptical about the Tesla business enterprise and who regularly share infonnation on the social media
23
24
25
platform, Twitter.
3.
The $TSLAQ phenomenon has been featured in a documentary by Grant Williams (The
26
Electric Noise, at www.realvision.com) and described in various newspaper articles, including the Los
27
Angeles Times.
28
- 1DECL/\R/\TION OF R ANDEEP HOTHI IN SUPPORT OF RESPONDENT'S MOTION FOR FEES
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1
4.
I posted my findings under a pseudonym; my Twitter " handle" was @skabooshka.
2
Because Tesla, and specifically Elon Musk, has a history of trying to silence critics, I was
3
uncomfortable using my real name.
4
5
6
5.
I came to prominence during 2018 for my accurate observations about Tes la Model 1
production rates. I regularly reported those observations on Twitter, and my observations contradicted
Elon Musk's claim during a quarterly conference call in August of 2017 when he said:
7
What people should absolutely have zero concern about, and I mean 0, is that
Tesla will achieve a 10,000 unit production week by the end of next year .... I
think people should really not have any concerns that we won ' t reach that
outcome from a production rate.
8
9
10
6.
I consider that my research was vindicated. Tesla's actual production rate was much
11
13
D-
closer to my data-driven estimates than the "zero concern" Musk rate. My production insights earned
me more than l 0,000 followers on Twitter and became part of the media discussion about Tesla's
14
production problems. I have attached two June 22, 2018 articles which mention me and my research;
15
one article from the Verge titled "Tesla built a giant tent to expand production of the Model 3" attached
16
as Exhibit
17
; and one from Engadget titled "Tesla built Model 3 assembly 'tents' meet production
goals" attached as Exhibit B.
18
7.
The value of my data on Tesla production was recognized even by the Tesla owners and
19
20
fans who post regularly at the Tesla Motors Club site, as evidenced by this thread:
21
https ://teslamotorsclub.com/tmc/threads/skabooshkas-model-3-production-numbers. l 23 565/ I have
22
attached a printout of the first twenty entries as an example and attached those pages hereto as
23
Exhibit C.
24
25
8.
On April 16, 2019, I was driving on Interstate 880 near Fremont, when I noticed a Tesla
Model 3 with manufacturer plates enter the highway. The Model 3 had two roof-mounted cameras and
26
another camera mounted inside. Aware Tesla had announced an "Investor Autonomy Event" for April
27
28
-2DECLARATION OF RANDEEP H OTHI IN SUPPORT OF RESPONDENT'S MOTION FOR FEES
AA291
Document received by the CA 1st District Court of Appeal.
12 |
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35 |
22, at which it would tout its "autonomous driving" capabilities, I surmised the Model 3 was engaged
2
in public testing or videotaping for that event. I was headed to San Francisco for a meeting. The Model
3
3 test vehicle was also headed in the direction of San Francisco. I tracked the car's route for a half
4
hour or so, recording video and taking photos.
5
6
9.
To the best of my recollection, I did not swerve towards the Model 3. If l did so (and I
|
|
PDF Page
36 |
12.
I was not provided any notice of the April 19, 2019 hearing on the temporary restraining
2
order. I was never served with a copy of the Petition or the Court's Temporary Restraining Order, and
3
I am not aware of any attempts to serve me. I learned about the TRO online and I voluntarily appeared
4
in this Court to defend myself and my reputation.
5
13.
Tesla's TRO was widely reported in the media. On-line publications closely aligned
6
with Tesla published atticles that assumed the truth of Tesla's allegations of actual and threatened
7
violence, or assumed a judge had weighed the evidence, or both.
8
9
10
Electrek wrote,
"[I]t is not reasonable to attempt to cause car collisions because you have an apocalyptic vison
ofyourself winning a crusade against a businessman you don't like. " Attached as Exhibit E.
11
13
14
15
16
17
18
19
20
Clean Technica wrote,
"Hothi ... has been issued a temporary restra;ning order after allegedly trying to cause an
accident dur;ng a Model 3 test drive that demonstrated the Navigate on Autopilot feature. "
Attached as Exhibit F.
Engadget wrote,
"[Hoth;J reportedly injured a security guard at Tesla's Fremont factory with his car in
February after he was asked to leave the parking lot, and on April 16th stalked a Tesla-owned
Model 3 for 35 minutes on the freeway to the point where he forced the car into a automatic
emergency maneuver to avo;d a collision. " Attached as Exhibit G.
And Teslarati wrote,
21
"The noted TSLAQ member reportedly drove so recklessly that his vehicle ended up triggering
the Model 3 's crash emergency avoidance maneuver." Attached as Exhibit H.
22
14.
23
24
25
The mainstream media, including Bloomberg and the Los Angeles Times, also
published news stories about the TRO, repeating Tesla's allegations.
15.
I received a torrent of abuse on Twitter and other social media, accusing me of being a
terrorist, a criminal, and a homicidal maniac. I attached a compilation of examples at Exhibit I. While
26
I would have liked to defend myself on social media, I elected not to make any further posts on my
27
28
-4l)ECLARATION OF RANDEEP Honu IN SUPPORT OF RESPONDENT'S MOTION FOR FEES
AA293
Document received by the CA 1st District Court of Appeal.
12 |
|
PDF Page
37 |
'l'wiacr feed,, l·ik 1·1~ liwsu:1 wns pending. ·1 he h~:,;t p.,s: 1 mad~\\ a:. un .\pril 22. 20 I9, h read: '"T:1~
2
3
1
p~ndc:nc~ oi'J"csln's law~uil aga1,~L inc make~ il prudcm for me: lo ,ay hul.: lln Twitter .:l prc,;enl. Hut
I do wi~h
t()
CXl)t'C'>~
my pro:ounci thani-::-. fo:- the outpouring
or :-;uppNl h.:r;; :inJ u, !ht: Gort.:1Dt',;'-l'J''S Mono:--,i JUR Fl'.l~S
AA294
•
1 <0 : ~
Document received by the CA 1st District Court of Appeal.
!I |
|
PDF Page
38 |
RESPONDENT RANDC:EiP HOTH! ' S MOTION FOR FEES
AA295
Document received by the CA 1st District Court of Appeal.
Exhibit A |
|
PDF Page
39 |
•
Tesla built a giant tent to expand production of the
Model 3
t
1
.
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1HEVERGE
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lHEVERGE
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A! :,:as~ •7 1.: l-.r~ ·i-:-;H 11;:n
II".,./.
1: l !}e~ac
t:~1rf .l1:re;my Acr.li~d\:>. 1na1M(JN •Ji 1rc!u~ ·r 1 r:1•:tl/}:1:1 :tl F:,_h,~no& \'h~ hn,,r,, :.'i':Cil
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https://www.theverge.com/2018/6/22/17 488372/tesla-model-3-prod uction-tent-expa nd
AA298
Document received by the CA 1st District Court of Appeal.
hru.t 1.. ,om lhe |
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PDF Page
42 |
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t.rvl wa;h f'ltl(,1 ttle Ct-,:tng t;l'Cvt'litJ 1tntu!Tc1:""! asp~ts
i" tO-J1rn~ 1; c ti:,i~e P.Joos, ,'.::.cl~·~d~
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RESPONDENT RANDEF.P HOTT [I'S MOTTON l"OR Ferns
AA300
Document received by the CA 1st District Court of Appeal.
Exhibit B |
|
PDF Page
44 |
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Document received by the CA 1st District Court of Appeal.
Sponsored Links
AA301 |
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45 |
r(1m1~.i, h~r h l)W Elon Mu~~k casu:tll y n1N 1tl• n C'd th :1 t l'c~la h~d !mill ..1 'ii..,·.
:1~•;f•:1;l 11y b:,· in jus rh ,ee w~eks to hitl p il meet its iony \-?~d !
prt:Lluction g,1tt\s? ii w~1.-; inor\! a l1d~c~l:us lh.1 11you
m;.tc-r$Z(l0
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fi-t\fJJlil:'l~!U . MH~k
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ure 1f his
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cornp;-my "','.u·lu~lly nt.•t.•d(cJ ;1 hmldini;, Sprun5·s stTt!C tU!t:'.S ilffl
c:on'>iderab!y slurdwr than a.ctual L,mb, and the r:1.:in cha11cn~e ls c·nsunn~
th:n th,'. outdoors do~~n·t atfrct prodn(tion.
Wht")thNor n(lt thL~ aoually helps Tt'Sla .1,l•~t lB 5,000 pN WL'~l.: Modd 3
rrodunum targ(•t Lsn·t renain. Mm,kwa!-to111,n~ [h~ tL'ntu1 mic.l •Junc, or
juM .1 couple of WN~k~ hefore the c-ml-of-)un(' tt1rg('t. At the tlmf•. Tr"iila 'Nil:-i
up to J.,5fJ0 (J1"S per w~~k ·- much t.Jettl!r lh•m tnd01~, bul thJl !efl .J 1nt of
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w 11nds ;;i.udacious. you\l b~ rjglll . r\ r~ ·n.,fh:riro ! '.HiiL'd lllat (!al·h ·1~11t' is
15(.) feet loug.i.nd 53 rr!et hit;h, an d thc1c·•, no knO\·.:n in~t~ncc o f vth.:-r CM
manufacturers doing t h.is bt?fore. |
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328
AA303 |
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47 |
RESPONDENT R,\NDEEP HOTHl 'S MOTION FOR FEES
AA304
Document received by the CA 1st District Court of Appeal.
Exhibit C |
|
PDF Page
48 |
C!eanMyMac X is 50% Off
Skabooshka's Model 3 Production Numbers
Page1of14 1
2
l
As far as I can tell, this guy on Twitter has a Tesla employee source providing daily producllon numbers. He provides lhese dally
numbers for the rsLA shons Given the 1n1ense focus on the producllon ramp. I thought a would be helpful to have a thread fur
!racking these numbers If you believe he is a poor source for these numbers, I can understand tha l, and you can 19nore this lhreod.
bdvor.27
M®el 3 Produc:tton
l::.O
11,
- - ~ Mr, 1-9 iil l $
•
q
······,
l ' I ll AOFtel,1n. 'i1t
6/2,1 Sd'I
6/25 623
6/27 811
6/28 856
6/29 701
6/30734
7/1 370
7/218
7/3 5
7/4 5
7/S 150
7/ 6 465
7/7 380
7/H :l6U
7/9 550
7/10610
7111700
7/12800
7/13 700
7/14 770
7/15 680
7/ 16530
7/17 ~00
7118540
7/19 570
7/20 560
7/21 680
https ://tes Ia motorsclub. com/tm c/th reads/ska boos h kas-mode 1-3-p rod uctio n-n um bers.12 3565/
AA305
Document received by the CA 1st District Court of Appeal.
·' |
|
PDF Page
49 |
July Model 3 Daily Avetage. 464
bdy0627
A:;(1'-V •~Cffit:1.tl
J |
|
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50 |
.!,1111-t"J
Ap;' 2$. 201 I
MCo;:.lt;t''i
1-4,702
l1Y;·.,n~:'I'
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schonelucht
dOI"
i :•;,l,l
Joln,:.:J_· Matl0.2011!.
}..i('S'5"-if~-
LDCa:l(.,ot dropped by ~bout ioo1diy
n,p '1st kJoked pn;,mi-Sing.
https://teslamotorsclub.com/tmc/threads/skabooshkas-model-3-production-numbers.123565/
AA307
Document received by the CA 1st District Court of Appeal.
to nir,t o U'ltNtl lot Uar:klng men numous. It ,ou L1tl11'\'¥' hit •s, poo, sourct IOr lnt-n nLJrntMHs, 1un ur:iue,a:101Kf
lhat, Jl'ld )'OU CM 1g~ lhlt thrHd |
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PDF Page
51 |
Yeah, its been up and down. nearing the target or 700/day on 6 days on July w,th that noce 5 day s1retch on the moddie Maybe some
slo'!"downs for ttuo n•w c,on<,guraOnl\-s • p~forfll~nc~ ono AWP, ~ut not siire Mcnrdin9 to $k1Jbno•~•Q, th~re was rumor of tae1ory
shutdown due to a senous problem on 7/22 when p,oductlOn dropped dramaltcally Clad to see il Iumped up significantly
yesterday
I would think chahan
OK l. 201d
J..iir,td
M'-'S.sa9cs
1.lllB
Y•llh.,r~ bt-Mup and rlo---n,r\et•rtl',(J the tar~ of 700/day 006 da,a\nJllyW1U, lhlt n,r.,e Sday !.lf,tr.h lntrutm1ddl•
M31bt some slowdowns fM mt new oonfigurnuons- ~~rfo«nanco and AWD. but Ml !It.rt'. ACcordf\g 'lO Sboooshita,
theff' was rumor oJ fecto,y 1hutdorNndu! to a senou6 probltm on 7/22 when orodU<:ljon dtopt,Nt drwnaOc;,ly. OIJd to
SH 1t )limped up s1gn10c3nt"1 ye11.terda)'
l.ot:.011Qff
SMa1013. fl. / w,e>cta,ow,
flof.and
Seems ic wasn't a rumor He was Just guessing about the reason Apparently, ' fire· 1s one of che ~rst ,xplanaclons lhal came to h1S
mind.
ZachSh.:ahan
l\1:lt~IJ\ \Ct-f!•l:'fl
,, L
ti---:1. llllt.
, .1,rnc.
......··"'. . . n.' w,~ ."'
~
~
Yuh, rt'~ been \IP •nd dOwn, J'tt&{lnq 1h~ targ•t o1 'J00/day o,i G d,ays in Juty w1lh lhal nke S day suelcl\ In the mtddJe
Mo~bt t omt ~ow |
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52 |
J1,h~i:-d
J.in l:J,
Mc-"''ntjE"<;
,·un
4, IJ3
Daily producrion upda1e
On July 24, 201 B TO$IQ produced appro>1marely
Model3· 640
ModelS: 140
ModelX.150
G~rlands
Ut·~•••
Jointd;
A.pt 4.2CJ11
Mi.:Sj;.t,;~s
l.~:1!16:l
61
M:u•;Urtd
G,H .ind:, S.l rj :
Dady produC't,on 1.1pd"a\c
On July "24.2018 roa.:i orocuced approJ.1matcly.
bdy0627
Mod~l3•64Q
M~ 19, 2G15
Me,$:t.t;~
ModtlS 1"0
MOdOIX 150
J,4n
toc:i.uon A&Jplirton. 'NI
These are good numbers again. Nice lo see. and espec,ally Nee to see 901119 inlo the 02 ER. Elon n..ds the firepower 11gh1 now
r'' C
bd)'1)627
~~!_.,,-. ~.r'tl'f'lt!•r
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53 |
Mrs,\•~t•<,:
826
l%,"CU11k"
1,:,tP.
J:)ir.~d·
New J. 200-;
M"!.Ui!).,..G
1 Make tweaks for AWD/P p,oducuon.
2. Adjust for white Interior (possibly)
3 Clear some bottlenecks so !hey can work loward 61n ,,..iork towa,d bkiwetll.
1r lhey push he,d I lhlnlt lhlll')' may be abtt to hold S,500/writ 1.&te fat \he rut of lhf: mond,. which 'NOutd look tnl good
going ln10 1ho liR (espodolly ,I h,gh AWO/P ,n;,J
Agreed .
... o, it could have been a fire "."'-1;
Given \hat they have opened up lot U.S orders, Tesla should have good 1ransparency ,nlo the expected performance and AWO
•ales mix for 03 and even Q4. That wrll be helpful for the 02 ER. I'm hopelul \hey actually n,iso !heir profit guidance for 03 and Q4,
11 even shghlly.
bdy0627
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Jo1n,d: M111l. l1lts
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M~S\.R<;"'J
3.
Lo<:.1t1on.; App.'eton, WI
Pago t of 14
•
1
(You mutt tog In or sign up lo pos1 htro.)
https ://tesla motorscl ub. co m/tm cfthreads/ska boosh kas-model-3-prod uctio n-nu mbers.12 3565/
AA310
Document received by the CA 1st District Court of Appeal.
Loe:,1110;1 |
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PDF Page
54 |
RESPONDENT RANDEEP HOT!-ll'S M OTION FOR FEES
AA311
Document received by the CA 1st District Court of Appeal.
Exhibit D |
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PDF Page
55 |
APRIL 18
htt ps :// e lectre k. co/2019 /04/ 18/tes Ia-spotted-Se lf-d riving-demo-autono my-network-event/
AA312
Document received by the CA 1st District Court of Appeal.
Tesla spotted filming self-driving demo ahead of
autonomy/Tesla Network event |
|
PDF Page
56 |
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https :// e Iect re k.co/2019/04/ 18/te sla-spotted-Se If-d rivi ng-d em o-a uto no my-network-event/
AA314
Document received by the CA 1st District Court of Appeal.
t , · rl,-:;- |
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PDF Page
58 |
RESPONDENT RANDEEP HOTHl'S MOTION FOR F!::ES
AA315
Document received by the CA 1st District Court of Appeal.
Exhibit E |
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PDF Page
59 |
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https://electrek.co/2019/04/20/tesla-shorts-threaten-accidents-restraining-order/
AA316
Document received by the CA 1st District Court of Appeal.
Tesla shorts th reaten to cause car collision to
discredit Tesla; restrain ing order granted |
|
PDF Page
60 |
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https://electrek.co/2019/04/20/tes la-shorts-threaten-accidents-restraining-order/
AA317
Document received by the CA 1st District Court of Appeal.
t()l\1~·11110 |
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PDF Page
61 |
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https ://e lectrek.co/2019 /04/20/tes Ia-shorts -th reaten-accide nts- restra i ni ng-orde r/
AA318
Document received by the CA 1st District Court of Appeal.
fJ |
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PDF Page
62 |
RESPONDENT RANDF.F.P HOTHl'S MOTION FOR FEES
AA319
Document received by the CA 1st District Court of Appeal.
Exhibit F |
|
PDF Page
63 |
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https://cleantechnica.com/2019/05/16/whats-behind -the-twisted-tesla-short-seller-psyche/
AA320
Document received by the CA 1st District Court of Appeal.
H'ltdo,t |
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PDF Page
64 |
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locmelly orga.ruzod (lh1J.s. it can't be caJlod a 'ccn.sp1racy"). bl.t ·Is
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T!ic T~~:apllobes connt!'C:1 on Tw1ller l~rough a plarform cafod STSU.O [lhe O 15 s:ocf(
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t1,:.11do .1p rC!kll1t'.'h tlllN,s .tr.cO,\Wl!J lo pors.on.-J .n:o~mII And llbtilly wilh I;a om~ in ctu:ugo
Somo use e.:immoroal da1nb~So8S 10 t•M:k Tesla•lcaded $hips •tom San Fr~ncisco :o Europe
and China Some Im; exr.ert~ al aulomollvtt l"asrng or O.l!"l\.-erb:;le l>Ontl~ Som~ r@rx~sl
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https://cleantechnica.com/2019/05/16/whats-behind-the-twisted-tesla-short-seller-psyche/
AA321
Document received by the CA 1st District Court of Appeal.
htilluring an SAF loijo ~ase<1 on a World War II ch,sign
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- Tosic ha:5 said lhill :noy a~o simply slagil'lg aroas lo, l111al aetivcry.) |
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mal wofld, With po10011a.11y dangorci;s rosulls. A-s
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f~s~ wroto m •ls requo~t tor a returalnlng order
11'1 an lnad(trn m FMJrutt.ry 2019. R8Sp,Oltf1&nf hil Tes/;,~ 5ecuri!y empJoyH Tylet
James 'Nl'lh his- car as Mr. James ap~oac/lea Resportt!enl to aSk him ID Isa~ TQSII :s
pnvato ptoperty Mt. Tyler sutrert.'d m;ncr v~...,,,~~ ThB Re~~t dtd not stop and
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Tl'tB Dopaffmf11'11 lal8f ar.ef11pled ta 16.JUe RB5P,orrckmt .J Wilrnmg nollW of traspass. oot
was unYuCC6$.SIOI ~aun Rtt$p0/l(l(t(I/ Ila."> al/lOldml :mcf been ur1()()(;,:;1;1ralwe in
mooting M-1lh Fromc)(JI pottca off,co1s
Mare roccnrJ),'. an Apr,t 16. 2019, Respondent SliJlktld, hartJSSOO, and rodnngafD'd
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pa,#a,lar. Jt,,jp,Jl!dcnl pursued ll>eso omp.'Oy..,. co lho ;;uMc highway lot abou/ 35
m.iootes, vatio"sly drtving anond ul, beSlJcJo ReSponcl6n/ swo"""1 so c/oso to lhe 5/do al the
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a Twitcer aa;.ounl 1'1ill trequenlty blasl.5 Musk aod Tes~. procla1m1ng lhe ccmpany·s OC)Slll |
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PDF Page
66 |
RESPONDENT RAND EEP HOTHl'S MOTION FOR FEES
AA323
Document received by the CA 1st District Court of Appeal.
Exhibit G |
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PDF Page
67 |
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https ://www .engadget.com/2019/04/22/tesla-s hort-sel!er-accused-of-threats/
AA325
Document received by the CA 1st District Court of Appeal.
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