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 APPENDIX
VOLUME VII OF VIII, PAGES AA600 TO AA
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
AA
Document received by the CA 1st District Court of Appeal.
Defendant-Appellant.Page 2 Randeep Hothi v. Elon Musk
First Appellate District Court of Appeal, Case No. A(Alameda County Superior Court Case No. RG20069852)
APPELLANT’S APPENDIX
CHRONOLOGICAL INDEX
Description
Date
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.Declaration of Elon Musk in
Support of Defendant Elon
Musk’s Motion to Strike the
Complaint Pursuant to Cal. Code.
Civ. Proc. Section 425.Declaration of Tyler James in
Support of Defendant Elon
Musk’s Motion to Strike the
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Document received by the CA 1st District Court of Appeal.
Complaint Pursuant to Cal. Code.
Civ. Proc. Section 425.Declaration of Jeanine Zalduendo
in Support of Defendant Elon
Musk’s Motion to Strike the
Complaint Pursuant to Cal. Code.
Civ. Proc. Section 425.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.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.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.Exhibits J-L to Defendant Elon
Musk’s Request for Judicial
Notice in Support of His Motion
to Strike the Complaint PursuantPage 4
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Document received by the CA 1st District Court of Appeal.
to Cal. Code. Civ. Proc. Section
425.[Proposed] Order Granting
Defendant Elon Musk’s Motion
to Strike the Complaint Pursuant
to Cal. Code Civ. Proc. Section
425.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.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.Elon Musk’s Evidentiary
Objections to the Declaration of
Randeep Hothi
Defendant Elon Musk’s
Responses to Plaintiff Randeep
Hothi’s Evidentiary ObjectionsPage 5
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
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AA604Page 6 Randeep Hothi v. Elon Musk
First Appellate District Court of Appeal, Case No. A(Alameda County Superior Court Case No. RG20069852)
APPELLANT’S APPENDIX
ALPHABETICAL INDEX
Description
Date
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.Declaration of Elon Musk in
Support of Defendant Elon
Musk’s Motion to Strike the
Complaint Pursuant to Cal. Code.
Civ. Proc. Section 425.Declaration of Jeanine Zalduendo
in Support of Defendant Elon
Musk’s Motion to Strike the
Complaint Pursuant to Cal. Code.
Civ. Proc. Section 425.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.
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Ex. No.Page 7
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.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.Exhibits H-I to Defendant Elon
Musk’s Request for Judicial
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Document received by the CA 1st District Court of Appeal.
Notice in Support of His Motion
to Strike the Complaint Pursuant
to Cal. Code. Civ. Proc. Section
425.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.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.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
425.16Page 9
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.Verified Complaint for Damages
and Demand for Jury Trial Filed
by Randeep Hothi
05/11/
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Document received by the CA 1st District Court of Appeal.
AA608Page 10 Exhibit Number
1 QUINN EMANUEL URQUHART & SULLIVAN, LLP
Alex Spiro (pro hac vice pending)
alexspiro@quinnemanuel.com
51 Madison Avenue, 22nd Floor
3 New York, New York Telephone: (212) 849-
QUINN EMANUEL URQUHART & SULLIVAN, LLP
5 Michael T. Lifrak (Bar No. 210846)
michaellifrak@quinnemanuel.com
6 Jeanine M. Zalduendo (Bar No. 243374)
jeaninezalduendo@quinnemanuel.com
7 Aubrey Jones (Bar No. 326793)
aubreyjones@quinnemanuel.com
8 865 South Figueroa Street, 10th Floor
Los Angeles, California 90017-9 Telephone: (213) 443-
l O Attorneys for Defendant Elon Musk
SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF ALAMEDA
CASE NO. RG
RANDEEP HOTHI,
Plaintiff,
[PROPOSED] ORDER GRANTING
DEFENDANT ELON MUSK'S MOTION
TO STRIKE THE COMPLAINT
PURSUANT TO CAL. CODE CIV. PROC.
SECTION 425.
Defendants.
Assigned for all purposes to:
Judge Julia Spain
Department
vs.
17 ELON MUSK,
~
- c-,.J
cyo
~~
C:J.'0G
Hearing Date: January 7,
Complaint Filed: August 4, None Set
Trial Date:
Case No. RG[PROPOSED] ORDER GRANTING DEFENDANT ELON MUSK'S MOTION TO STRIKE THE COMPLAINT
PURSUANT TO CAL. CODE CIV. PROC. SECTION 425.
AA609Page 11
[PROPOSED] ORDER
The Court, having considered Defendant Elon Musk’s motion to strike the complaint pursuant
3 to California Civil Code Section 425.16, the declarations of Elon Musk, Christine Leslie, Tyler
4 James, and Jeanine Zalduendo, and the request for judicial notice, the papers filed in response thereto,
5 all other argument and the record of this case, and GOOD CAUSE appearing therefor; hereby finds
6 that Plaintiff’s Complaint should be stricken under Cal. Code Civ. Proc. § 425.16.
IT IS HEREBY ORDERED that Plaintiff Randeep Hothi’s Complaint is stricken, and his
8 claim against Mr. Musk is DISMISSED WITH PREJUDICE.
Because Mr. Musk has prevailed on his anti-SLAPP motion, pursuant to Cal. Code Civ. Proc.
10 § 425.16(c)(1), he is entitled to recover mandatory attorney’s fees in an amount to be determined.
IT IS SO ORDERED.
14 DATED:
_____________,
Honorable Julia Spain
Judge of the Superior Court
Document received by the CA 1st District Court of Appeal.
Case No. RG[PROPOSED] ORDER GRANTING DEFENDANT ELON MUSK’S MOTION TO STRIKE THE COMPLAINT
AA610 PURSUANT TO CAL. CODE CIV. PROC. SECTION 425.
-1-Page 12 PROOF OF SERVICE
2 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,
4 10th Floor, Los Angeles, CA 90017-2543.
On October 30, 2020, I served true copies of the following document(s) described as
[PROPOSED] ORDER GRANTING DEFENDANT ELON MUSK’S MOTION TO
STRIKE THE COMPLAINT PURSUANT TO CAL. CODE CIV. PROC. SECTION
425.on the interested parties in this action as follows:
10 Lawrence J. Fossi
25 Hawthorn Lane
11 Bozeman, MT Lawrence.fossi@outlook.com
Law Office of D. Gill Sperlein
345 Grove Street
San Franciso, CA gill@sperleinlaw.com
BY ELECTRONIC MAIL TRANSMISSION: By electronic mail transmission from
jeaninezalduendo@quinnemanuel.com
on October 30, 2020, by transmitting a PDF format copy of
such documents to each such person at the e-mail address listed above, per agreement between the
15 parties regarding electronic mail service. The documents were transmitted by electronic
transmission and such transmission was reported as complete and without error.
I declare under penalty of perjury under the laws of the State of California that the foregoing
is true and correct.
Executed on October 30, 2020, at Los Angeles, California
Jeanine Zalduendo
-1AA
Document received by the CA 1st District Court of Appeal.
Case No. RGPROOF OF SERVICEPage 13 Exhibit Number
:Illllll lllll lllll lllll lllll lllll lllll lllll llll llil
1 QUINN EMANUEL URQUHART & SULLIVAN, LLP
Alex Spiro (pro hac vice pending)
alexspiro@quinnemanuel.com
51 Madison Avenue, 22nd Floor
3 New York, New York Telephone: (212) 849-QUINN EMANUEL URQUHART & SULLIVAN, LLP
5 Michael T. Lifrak (Bar No. 210846)
michaellifrak@quinnemanuel.com
6 Jeanine M. Zalduendo (Bar No. 243374)
jeaninezalduendo@quinnemanuel.com
7 Aubrey Jones (Bar No. 326793)
aubreyj ones@quinnemanuel.com
8 865 South Figueroa Street, 10th Floor
Los Angeles, California 90017-9 Telephone: (213) 443-
SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF ALAMEDA
RANDEEP HOTHI,
CASE NO. RG
Plaintiff,
NOTICE OF ERRATA REGARDING THE
SIGNATURE PAGE TO THE
DECLARATION OF ELON MUSK IN
SUPPORT OF ELON MUSK'S MOTION
TO STRIKE THE COMPLAINT
PURSUANT TO CAL. CODE CIV. PROC.
SECTION 425.
vs.
17 ELON MUSK,
Defendants.
Assigned for all purposes to:
Judge Julia Spain
Department
Hearing Date: January 7,
Complaint Filed: August 4, Trial Date:
None Set
Q
N
~
~
I R,
~
Case No. RGNOTICE OF ERRATA
AA
Document received by the CA 1st District Court of Appeal.
10 Attorneys for Defendant Elon MuskPage 14 TO THE COURT, ALL PARTIES, AND THEIR ATTORNEYS OF RECORD:
PLEASE TAKE NOTICE that Def~ndant Elon Musk hereby respectfully submits this
Notice of Errata regarding the signature page to the Declaration of Elon Musk in Support of Elon
Musk's Motion to Strike the Complaint Pursuant to Cal. Code Civ. Proc. Section 425.16 (the
"Musk Declaration"). It has come to counsel's attention that the Musk Declaration was filed
without the executed signature page on Friday, October 30, 2020. The signed Musk Declaration
was, however, served on all parties on Friday, October 30, 2020.
The signature page to the Musk Declaration is attached hereto as Exhibit A.
Respectfully submitted,
QUINN EMANUEL URQUHART & SULLIVAN, LLP
By:
AA· _
_,/~:
,,/,,.'f~i
Michael T. Lifrak
Attorneys for Elon Musk
-1-
AA
Case No. RGNOTICE OF ERRATA
Document received by the CA 1st District Court of Appeal.
DATED: November 3, 11Page 15 -
PROOF OF SERVICE
2 STATE OF CALIFORNIA, COUNTY OF LOS ANGELES
I
At the time of service, I was over 18 y·ears 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 ·
4 Figueroa Street, 10th Floor, Los Angeles, CA 90017-2543.
On November 3, 2020, I served true copies of the following document(s) described as
NOTICE OF ERRATA REGARDING THE SIGNATURE PAGE TO THE
DECLARATION OF ELON MUSK IN SUPPORT OF ELON MUSK'S MOTION
TO STRIKE THE COMPLAINT PURSUANT TO CAL. CODE CIV. PROC.
SECTION 425.
9 on the interested parties in this action as follows:
Lawrence J. Fossi
Law Office of D. Gill Sperlein
345 Grove Street
San Franciso, CA gill@sperleinlaw.com
11 25 Hawthorn Lane
Bozeman, MT 12 Lawrence.fossi@outlook.com
131'1--------------------'-----------------'
BY ELECTRONIC MAIL TRANSMISSION: By electronic mail transmission from
jeaninezalduendo@quinnemanuel.com on November 3, 2020, by transmitting a PDF format copy
15 of such documents to each such person at the e-mail address listed above, per agreement between
the parties regarding electronic mail service. The documents were transmitted by electronic
l 6 transmission and such transmission was reported as complete and without error.
I declare under penalty of perjury under the laws of the State of California that the
18 foregoing is true and correct.
Executed on November 3, 2020, at Los Angeles, California
~~~kfJ
-1-
AA
Case No. RGPROOF OF SERVICE
Document received by the CA 1st District Court of Appeal.
10,-----------------r-----------------,Page 16 1 hereto as Exhibit B. My statement aboutMr. Hothi having ''actively
2 was based on, among other things, the report; I had ;eceived about
a~sed" Tesla ~:rnployees
Mt,+~
I
posiin~tl·otographs
3 of the Fremont factory, p~ting bidden cameras, and being found in the erl• patki~ ot. My
'f
4 statement that~- Hoi:l)I ~1deswiped a Tesla employee was bas~ on the ~or! I recOIV tfrom a
5 member of Tesla s Security team on February 22, 2019, reganling themct:nt that occr on
6 February 21, 2019. I believed my state=ts were true and ~urate, basMon the
rept
I had
7 rece1y~d :from Tesla employees and, the fact that they had submitted decla.r:at10ns under oath, Which
,i1~)~
8 contained the same information, in connection with a temporary r¢sll'ainink 1rd!:lr that rlsla
My statement that the sideswiping "could
IQ with 6 inc1!es of difference" and that he "almost killed" Tesla employees
have bee~ a death
my opiniof based on
11 ~e same ~ormation. . In m.y opinion, an~ car hitting.a pedes~an i$ a·seriou•·s issue, anl:s.ix
12 mcbes of difference could be a matter of life or death m ~nch crrcumstancJ. :
8.
.
.
Mr. Greenspan then responded to my email at6:17 pm. A h ieand co;rre t copy of
.
.
I
14 this email is attached hereto as Exhibit C. We then exchanged a number c)f ~ditional eµiails
I '
I
15 over the course ofthe night and following day. A true and correct .copy ofitqese emails 's
I
!
!
16 attached hereto as Exhibit D.
I declare under penalty .ofperjury under th~Jaws .of the United Statei of America
rat the
19 foregoing. is true and correct and that this docum.ent was executed in Los · g~les., Califotnia.
21 DATED: October 29.,
-2-
Case No.. MUSK OE
!
AA
Document received by the CA 1st District Court of Appeal.
9 obtained against Mr: Hothi,Page 17 To:
From: The Law Office of D GI Fax:
Fax: (510) 267-
Page: 10 of
01/11/20211:13 PM
Exhibit Number
FILED BY FAX
ALAMEDA COUNTY
D. GILL SPERLEIN, SBN THE LAW OFFICE OF D. GILL SPERLEIN
2 345 Grove Street
San Francisco, CA 3 Telephone: (415) 404-Facsimile: (415) 404-4 g:ill@sperleinlaw.com
January 12, CLERK OF
THE SUPERIOR COURT
By Shabra lyamu, Deputy
CASE NUMBER
RG
5 LAWREN CE J. FOSSI, TX SBN 07280650 (pro hac vice)
25 Hawthorn Lane
6 Bozeman, MT Telephone: (713) 854-7 lawrence.fossi(moutlook.corn
8 Attorneys for Plaintiff Randeep Hothi
SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF ALAMEDA
UNLIMITED JURISDICTION
RANDEEP HOTHI, an individual,
Plaintiff,
V.
ELON MUSK, an individual,
Defendant.
)
)
)
)
)
)
Case No: RGASSI.GNED FOR ALL PURPOSES TO:
JUDGE JULIA SPAIN
DEPT. 520-HAYWARD HALL OF
JUSTICE
)
)
)
)
)
PLAINTIFF RANDEEP HOTHl'S
MEMORANDUM IN OPPOSITION
TO PLAINTIFF ELON MUSK'S SPECIAL
MOTION TO STRIKE
)
) BY FAX
)
)
)
)
)
Judge: Julia Spain
Dept.: Date: Janumy 27, Time: I :30 p.rn.
)
Document received by the CA 1st District Court of Appeal.
AA
CASE No. RGOPPOSITION TO SPECIAL MOTION TO STRIKEPage 18 From: The Law Office of D GI Fax:
To:
Fax: (510) 267-
Page: 11 of
01/11/20211:13 PM
TABLE OF CONTENTS
2 TABLE OF CONTENTS ....................................................................................................................... ii
3 TABLE OF AUTHORITIES ................................................................................................................. iii
INTRODUCTION ........................................................................................................................
ARGUMENT ........................................................................................................................
I.
Musk Docs Not Meet His Burden of Showing Any of His Defamatory Remarks 'Arise From'
Protected Activity.·······················································Â
·Â·Â·Â·Â·Â·Â·Â·Â·Â·Â·Â·Â·Â·Â·Â·Â·Â·Â·Â·Â·Â·Â·Â·Â·Â·Â·Â·Â·Â·Â·Â·Â·Â·Â·Â·Â·Â·Â·Â·Â·Â·Â·Â·Â·Â·Â·Â·Â·Â·Â·Â·Â·Â·Â·Â·Â·Â·Â·Â·Â
A. None of Musk's three accusations of criminal conduct were made 'in connection with a
. issue
.
.
.
' ..................................................................................... _s
publ 1c
or an issue
ot· publ.tc mterest.
1.
issue of public interest. ...............................................................................................................
2.
Musk's accusations in his one-on-one email sniping with Greenspan bear no 'functional
relationship' to any issue of public interest. ...............................................................................
Musk's charges of criminal conduct do not ·contribute to the public debate' about any
Document received by the CA 1st District Court of Appeal.
There was no pending litigation sufficient to invoke subdivision (e)(2) ................................
B.
Hothi Has a High Probability of Prevailing on the Merits of His Claim...................................
II.
A.
Musk's allegations constitute defamationperse....................................................................
B.
Musk fails to establish any valid defense or privilege ......................................................... Musk fails to raise any argument relating to his charge that Hothi "almost killed" Tesla
1.
employees other than James .....................................................................................................
2.
Musk's other statements were not opinion but contained provably false assertions of fact.
3.
No affirmative defenses salvage Musk's statements ........................................................
a)
The substantial truth doctrine does not apply ...............................................................
b)
Hothi is not a public figure, but even ifhe were, there is ample evidence of actual
-iiAA
CASE No. RGOPPOSITION TO SPECIAL MOTION TO STRIKEPage 19 From: The Law Office of D GI Fax:
To:
Fax: (510) 267-
Page: 12 of
01/11/20211:13 PM
TABLE OF AUTHORITIES
CASES
4 Barnes-Hind, Inc. v. Superior Court (1986) 181 Cal. App. 3d 377 ....................................................... S Behr v. Redmond (2011) 193 Cal. App. 4th 517 ..................................................................................
Bently Reserve L.P. v. Papaliolios (2013) 218 Cal. App. 4th 418 ................................................ passim
De/vfartini v. De/vfartini (On Reh 'g) (9th Cir. Dec. 23, 2020)
F. App'x _, 2020 WL 7658347 .....
7 Du Charme v. International Brotherhood ofElectrical TYorkers (2003) 110 Cal. App. 4th 107 .......... 8 Duong v. ITT Educ. Svcs., Inc., Super. Ct. No.RGI 4724442 .............................................................. 9 FilmOn.com v. Double Verify, Inc. (2019) 7 Cal 5th 133 ............................................................... 5, 6, 10 Franklin v. Dynamic Details, Inc. (2004) 116 Cal. App. 4th 375 ........................................................
Grenier v. Taylor (2015) 234 Cal. App. 4th 471 .......................................................................... 6, 8, Hailstone v. Martinez (2008) 169 Cal. App. 4th 728 .............................................................................
Document received by the CA 1st District Court of Appeal.
Laker v. Bd. ofTrs. of Cal. State Univ. (2019) 32 Cal. App. 5th 745 .................................................... Long Beach Unified Sch. Dist. v. Margaret Williams, LLC (2019) 43 Cal. App. 5th 87 .....................
14 Lundquist v Reusser ( 1994) 7 Cal. 4th 1193 ........................................................................................ 15 Masson v. New Yorker Magazine, Inc. (1991) 501 U.S. 496 ............................................................... 16 Milkovich v. Lorain Journal Co. (1990), 497 U.S. 1...................................................................... 10,
Monster linergy Co. v. Schechter (2019) 7 Cal. 5th 781 ........................................................................
Murray v. Tran (2020) 269 Cal. Rptr. 3d 231 ................................................................................ 5, 6, Overstock.com, Inc. v. Gradient Analytics, Inc. (2007) 151 Cal. App. 4th 688 ........................... 4, 9,
Park v. Board of Trustees of Cal. St. Univ. (2017) 2 Cal. 5th I057 .......................................................
20 People v. Bipialaka (2019) 34 Cal. App. 5th 455 ................................................................................
Rand Resources, LLC v. City of Carson (2019) 6 Cal.5th 610 ..............................................................
22 Roemer v. Retail Credit Co. ( 1975) 44 Cal. App. 3d 926 ....................................................................
23 Siam v. Kizilbash (2005) 130 Cal. App. 4th 1563 .................................................................................. Summit Bankv. Rogers (2012), 206 Cal. App. 4th 669 .................................................................... 9, Super Future Equities, Inc. v. Wells Fargo Bank Minnesota, NA. (N.D. Tex. 2008) 553 F. Supp. 2d
680 ........................................................................................................................
26 Tesla, Inc. v. Randeep Hothi (April 19, 2019) Alameda County Superior Court, RGI 9015770 ........... 27 Time, Inc. v. Firestone (1976) 424 U.S. 448 .......................................................................................... -iiiAA
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Weinberg v. Feisel (2003) 110 Cal.App.4th l 122 .................................................................................. 2 Weller v. ABC (1991) 232 Cal. App. 3d 991 ........................................................................................
3 Wilcox v. Superior Court (1994) 27 Cal. App. 4th 809 .......................................................................... I
Wilson v. Cable News Network. Inc. (2019) 7 Cal. 5th 871 ................................................................... Wong v. Jing (2010) 189 Cal. App. 4th 1354 .......................................................................................
Yang v. Tenet Healthcare, Inc. (2020) 48 Cal. App. 5th 939 .................................................................
Cal. Code Civ. Pro.§ 425.16(e)(2) ......................................................................................................... Cal. Code Civ. Pro.§ 425.16(e)(4) ..................................................................................................... 5,
Document received by the CA 1st District Court of Appeal.
Cal. Penal Code§ 245(a)(l) ................................................................................................................. Cal. Penal Code§ 646.9(a) ...................................................................................................................
14 Cal. Yeh. Code§ 23103(a) ................................................................................................................... JO
TREATISES
17 Elder, Defamation: A Lawyer's Guide (2012) Fact Versus Opinion,§ 8:2 ......................................... -ivAA
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INTRODUCTION
The classic SLAPP action is a case of dubious merit, filed mainly to force one's foe to spend
4 his limited time, energy, and money fighting in court, rather than in the political or other arena in which
5 the parties have been battling. (lt'ilcox v. Superior Court (1994) 27 Cal. App. 4th 809, 815-817, as
6 modified on denial of rehearing, Sept. 15, 1994.) Here, it is Musk's motion to strike (the "Motion") that
7 is the SLAPP. First, Musk tried to silence Hothi by directing his company, Tesla, to file a bogus civil
8 harassment claim, which Tesla withdrew when the court required Tesla to produce its evidence. Now,
9 the world's wealthiest man, after defaming Hothi with false accusations of criminal conduct, has filed
10 a meritless motion in an attempt to skate free of the consequences.
Document received by the CA 1st District Court of Appeal.
Hothi's complaint is far outside the anti-SLAPP act. Musk's defamatory accusations were
12 unrelated to any issue of public interest or pending court proceeding, and Hothi has a high likelihood
b~
of success because Musk's defamatory per se accusations
one of which, his Motion completely
14 ignores were not mere opinion, but actionably false factual statements.
RELEVANT FACTS
Tesla and Musk - Defendant Elon Musk, the CEO of Tesla, actively controls Tesla and
17 exercises an extraordinarily high degree of control over its activities including the activities and
18 decisions described in this Memorandum. (Declaration ofRandeep Hothi ("Hothi Deel."), ii 32.)
Hothi and Musk - Hothi, a graduate student at the University of Michigan, is a pennanent
20 resident of Fremont, California. (Hothi Deel., ii 1.) Beginning in 2015, he developed an interest in
Tesla's business. (id., ii 4.) Over time, he became skeptical of several Tesla claims about its technology,
22 and he anonymously shared that skepticism on Twitter under his account, @skabooshka. (Id., i1i14-5.)
For instance, Hothi doubted Musk's 2016 claim that Tesla's manufacturing processes for its
24 forthcoming Model 3 car would function largely without human input and be superior to those of other
25 automobile manufacturers. (Id., i1i16-7.) From observations made outside Tesla's Fremont factory,
26 Hothi tracked Tesla's actual production rate (far lower than promised) and documented its erection of
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a tent for the manufacture of Model 3 cars. Hothi posted his findings, including photos, on Twitter. (Id.,
Hothi also doubted Musk's 2016 claims that Tesla was close to achieving full self-driving
capability, and that by the end of 2017 a Tesla would be able to drive cross-country without human
intervention. (Hothi Deel., iii! 4, 13-14.) Early in 2017, Tesla began offering "full self-driving" as an
expensive option, and proceeds from its sale have been an important component of Tesla's revenues.
(id., ilil 14-15.) Tesla's employees kept Musk apprised of Hothi's Twitter postings. (Motion at 3:3.) By
January 2019, Tesla had identified Hothi and his car. (Id., i1i1 18, 22-23.)
The Parking Lot Incident- On February 21, 2019, Hothi lawfully entered the Fremont factory
and showroom grounds to gather infom1ation about Model 3 production, backing his car into a publicly
Document received by the CA 1st District Court of Appeal.
accessible parking space. (Hothi Deel., ii 16.) A Tesla license plate reader identified him, prompting
Tesla to send one or more security officers, including Tyler James, to confront Hothi. (Id., ilil 17, 22.)
After later viewing video from James' cellphone and Tesla's security camera, police determined
that "[als James approached the vehicle, [Hothi] drove away at a slow rate of speed." (Id.
ilil 21, 27-
& Ex. 3 thereto, emphasis added.) James claimed to have been struck in the knee, but police who viewed
the videos saw no contact and reported: "James did 11ot have a11y injuries." (Id., emphasis added.) For
his part, even James did not believe the alleged contact was intentional or that Hothi was aware of it.
(ibid.) Though Musk tells this Court Hothi' s action constituted "Assault of a Tesla Employee" (Motion
at 3 & 9-11 ), Tesla has consistently refused to disclose James' medical records, videos of the incident,
or anything else to corroborate James' claim of contact, much less injury. (Hothi Deel., ilil 29-30, 42-
48, 52 & Exs. 4-7, 9-12 & 15.) Hothi does not believe he struck James and believes the video evidence
in Tesla's possession will prove he did not. (Id., ii 24.)
The Roadway Incident - On April 16, 2019, Hothi, while driving, happened upon a Tesla
vehicle with manufacturer plates and roof-mounted cameras. He correctly surmised that the vehicle
was recording data for Tesla's upcoming "Autonomy Day," at which Musk would tout Tesla's
"autonomous driving" capabilities and promise a million "robotaxis" by the end of 2020. (Hothi Deel.,
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ii 35.) Hothi observed and photographed the vehicle, but at no point drove recklessly or endangered any
of its occupants' safety. (Id., i!il 35-37.) Hothi later posted the photographs on Twitter. (Id., ii 38.)
Evidently, Musk was irritated. Three days later, he posted an obscene drawing aimed at Hothi
and Tesla filed an action under Cal. Civ. Proc. § 527.8, claiming Hothi had dangerously swerved his
car towards the Model 3. (Tesla, Inc. v. Randeep Ilothi (April 19, 2019) Alameda County Superior
Court, RG 19015770) (herein, the "Harassment Action"). (Hothi Deel., ilil 19, 26, 41 & Exs. 2 &
thereto.) Tesla's petition also mentioned the alleged February parking lot incident, asserting James
"suffered minor injuries" and attaching a declaration (from a declarant who was not present) ave1Ting
that Hothi "drove his car quickly and recklessly out of the parking lot." (Id., i1i121, 26 & Exs. 2-
unrepresented when the court granted the TRO. (id. ii 19.)
In advance of the injunction hearing, Hothi requested discovery. (Hothi Deel., i1i129, 42.) The
Court ordered Tesla to produce all its audio and video recordings made in connection with both the
parking lot incident and roadway incidents. (Id.
i! 48.) Tesla vigorously opposed the request both before
and after the court granted it, even though, were Tesla's claims truthful, the recordings would have
established the veracity of the sworn statements on which the injunction issued. (Id.
iii! 43-44, 47-49 &
Exs. 5 & 13 thereto.) Immediately afi:er the Court denied Tesla's motion to reconsider the discovery
order on July 19, 2019, and even pledged to review Tesla's materials in camera, Tesla withdrew its
petition. (Id. i1i1 51-52 & Exs. 6 & 12 thereto.) The withdrawal of the petition is circumstantial evidence
that Tesla (and Musk) knew the allegations were contrived and false, and would not be supported by
the evidence.
Musk's Three Defamatory Accusations in His Defamatory Statement- On August 7, 2019,
19 days after Tesla dismissed its lawsuit, Musk in an email exchange with Aaron Greenspan, stated
that Hothi and others
... 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. (Motion 4: 23-25; Verified Complaint, ii 40 ("Defamatory
Statement").
Document received by the CA 1st District Court of Appeal.
thereto). Tesla gave Hothi no prior notice of the petition's filing, and consequently Hothi was
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Musk's Defamatory Statement thus alleged three separate acts of criminal conduct by Hothi:
3 that he 1) "actively harassed" Tesla employees, 2) "hit one of our people" (James), and 3) "almost
4 killed Tesla employee~," plural (emphasis added). Because James was the only Tesla employee
5 allegedly hit during the February incident, the third charge necessarily accused Hothi of also "almost
6 killing" at least one (if not all three) of the Tesla employees involved in the April roadway incident.
7 Greenspan republished the exchange on Twitter.
Musk's History of Maliciously Attacking Critics - Musk's Motion is but the latest example
9 of his famous habit of attacking critics of him or Tesla. Among many examples are the Harassment
10 action and Unsworth v. Musk (N.D. Cal. May 10, 2019) 2019 Westlaw 45431 JO, **2-3 (after cave-
Document received by the CA 1st District Court of Appeal.
diver who helped rescue a stranded youth soccer team derided Musk's appearance as a "PR stw1t" that
12 "had absolutely no chance of working," Musk in a series of Tweets called him a pedophile and child
13 rapist who moved from the UK to Thailand for its sex trade).
ARGUMENT
This Court evaluates an anti-SLAPP motion through a two-step process. (Monster Energy Co.
v. Schechter (2019) 7 Cal. 5th 781, 788.) "Initially, the moving defendant bears the burden of
establishing that the challenged allegations or claims 'arise from' protected activity in which the
defendant has engaged." (Park v. Board of Trustees of Cal. St. Univ. (2017) 2 Cal. 5th 1057, 1061,
cleaned up.) "If the defendant carries its burden, the plaintiff must then demonstrate its claims have at
least 'minimal merit."' (Id.; see also Overstock.com, Inc. v. Gradient Analytics, Inc. (2007) 151 Cal.
App. 4th 688, 699 (hereafter "Overstock.com").) The court accepts as true the evidence favorable to
plaintiff and evaluates defendant's evidence only to detennine whether it defeats the plaintiffs as a
matter of law. (Bently Resen1e L.P. v. Papaliolios (2013) 218 Cal. App. 4th 418, 425-426, citation
omitted (hereafter "Bently").)
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Musk Does Not Meet His Burden of Showing Any of His Defamatory Remarks 'Arise
From' Protected Activity.
A. None of Musk's three accusations of criminal conduct were made 'in connection with a
public issue or an issue of public interest.'
Where a defendant seeks protection under Cal. Code Civ. Pro.§ 425.16(e)(4) for statements on
5 a supposed matter of public interest that were made not in a public forum but between individuals, the
6 proper test is the two-step analysis of FilmOn.com v. Double Verify, inc. (2019) 7 Cal 5th 133 (hereafter
7 "FilmOn.com"). (Murray v. Tran (2020) 269 Cal. Rptr. 3d 231, 243-45 (hereafter "Murray"), citing
8 FilmOn.com.) "First, we ask what 'public issue or issue of public interest' the speech in question
9 implicates - a question we answer by looking to the content of the speech." (Id. at p. 244, quoting
10 FilmOn.com at p. 149-150, brackets omitted.) "Second, we ask what functional relationship exists
12 no way satisfies that test.
Document received by the CA 1st District Court of Appeal.
between the speech and the public conversation about some matter of public interest." (Ibid.) Musk in
1. Musk's charges of criminal conduct do not 'contribute to the public debate'
about any issue of public interest.
To ensure subsection (e)(4) is applied "only to constitutionally protected expression," the court
must "carefully examine" the statements' content "to ensure they arc sufficiently connected to an
existing public discussion or debate." (Murray, supra, 269 Cal. Rptr. 3d at p. 244, citing FilmOn.com
at p. 145, court's emphasis.) "[A] 'public controversy' does not equate with any controversy of interest
to the public. (Time, inc. v. Firestone (1976) 424 U.S. 448, 454.) "For example, a divorce action
between the scion of one of America's wealthier industrial families and his Palm Beach society wife
may have piqued the public's interest but was not a public controversy." (Weinberg v. Feisel (2003)
As the FilmOn.com court warned, "virtually always, defendants succeed in drawing a line
however tenuous connecting their speech to an abstract issue of public interest." (FilmOn.com, supra,
269 Cal. Rptr. 3d at p.150.) Sure enough, Musk identifies three supposed areas of public interest to
which his accusations relate: Tesla's "Autopilot" feature, the way Tesla treats its critics, and the actions
"of a member of the $TSLAQ community." (Motion at 7). Musk further claims the first two topics
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"concerned the actions of a high-profile public company and businessman and thus was a clear matter
of public interest." (Ibid). However, it is not enough that a statement simply "refer to a subject of
widespread public interest:" rather, "the statement must in some manner itself contribute to the public
debate." (FilmOn.com, supra, 7 Cal 5th at p.150, emphasis added; citations omitted.) In other words,
the court must ask whether the defendant "participated in, or furthered, the discourse that makes an
issue one of public interest." (Id. at p. 151, citation omitted.)
Musk's accusations of criminal conduct by Hothi in no way advanced any of the issues of public
interest his Motion tries to identify. They did not remotely implicate Tesla's marketing of Autopilot,
nor contribute to any public debate about TSLAQ in general nor Hothi (or any other Tesla critic) in
particular. Instead, they simply leveled three false charges as a means of tarring Hothi's reputation,
Document received by the CA 1st District Court of Appeal.
including that he "almost killed" multiple Tesla employees on several occasions. Importantly, the
accusations were made in a private, one-to-one email. (See FilmOn.com, supra, 7 Cal. 5th at p.
[defendant did not issue allegedly defamatory reports about plaintiff's company to the wider public,
but privately, to a coterie of paying clients].) Musk's private slandering of Hothi at most refers to an
issue of interest among a small, select group of people.
And, the mere fact that a speaker is globally famous does not transmute his dispute into an issue
of public interest. (Hailstone v. Martinez (2008) 169 Cal. App. 4th 728, 736; Grenier v. Taylor (2015)
2. Musk's accusations in his one-on-one email sniping with Greenspan bear
no 'functional relationship' to any issue of public interest.
Even assuming Musk could make the first showing in the FilmOn.com analysis, his Motion fails
22 the second, which asks "what functional relationship exists between the speech and the public
23 conversation about some matter of public interest." (FilmOn.com, supra, 7 Cal. 5th at pp. 149-50.) That
24 analysis "must include a consideration of the context or specific circumstances in which the statement
25 was made, 'including the identity of the speaker, the audience, and the purpose of the speech."'
26 (Murray, supra 269 Cal. Rptr. 3d at p. 244, quoting FilmOn.com, supra, 7 Cal. 5th at pp. 140, 151-52,
27 court's emphasis.)
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Musk's email exchange with Greenspan reflects a private sniping match that did not further
"some public conversation about some matter of public interest." (Murray, supra, 269 Cal. Rptr. 3d at
p. 244, quoting FilmOn.com, 7 Cal. 5th at pp. 140, 149-152.) While a few other parties originally were
copied, by the time Musk made his accusations, he had removed the last third party (his brother Kimbal)
and the exchange included only him and Greenspan. In light of the speaker, the audience, and the
speech's purpose, it obviously was not intended to further any "public conversation" on any issue of
public interest, and Musk's Declaration does not suggest otherwise. Musk was simply defending his
personal reputation and conduct against Cireenspan's aggressive statements in a private email exchange
and chose to do so by assassinating Hothi' s character.
Caselaw applying FilmOn.com confirms that Musk's accusations are not protected under
Document received by the CA 1st District Court of Appeal.
subdivision (e)(4). (Murray, 269 Cal. Rptr. 3d at pp. 247-49 [emails calling dentist's work "below par"
did not meet FilmOne.com's "functional relationship" test because, although involving a subject of
public interest (the quality of dental care), the emails were sent only to a limited number of persons,
and defendant "presented no evidence showing he sent these emails to warn patients or other users of
[plaintiff's] services, or that he intended others to do so"J; Wilson v. Cable News Network, Inc. (2019)
7 Cal. 5th 871, 899-903 [employer's comments to plaintiffs supervisor and prospective future
employers that plaintiff had committed plagiarism were not protected under (e)(4) because they were
about one instance of plagiarism, not the larger issue of media honesty; a defendant seeking catch-all
protection "must show not only that its speech refen-ed to an issue of public interest, but also that its
speech contributed to public discussion or resolution of the issue"]; compare Yang v. Tenet Healthcare,
Inc. (2020) 48 Cal. App. 5th 939 948 [allegedly defamatory statements about surgeon's qualifications,
competence, and medical ethics were protected under subsection (e)( 4) where made to other health care
providers, medical practices, plaintiff's patients, and the general public; speech to the public about a
doctor's qualifications furthers public discourse on that matter," court's emphasis].) Even were Hothi
a limited public figure for purposes of debating the production and safety record of Tesla cars, that does
not mean he is a public figure for all purposes. Hothi is a public person only for topics relevant to such
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production and safety. On what subject of public interest was Musk commenting? Clearly, he was not
trying to warn other companies that Hothi might try to harass or kill their employees.
While "public interest" is not limited to governmental matters, the purported constitutionally
protected activity "must, at a minimum, be connected to a discussion, debate or controversy." (Grenier,
supra, 234 Cal. App. 4th at 482, citation omitted.) "Merely informational" statements are not protected,
because protecting such statements "in no way further[s] 'the statute's purpose of encouraging
participation in matters of public significance."' (Ibid., court's emphasis, citing Du Charme v.
International Brotherhood of Electrical Workers (2003) 110 Cal. App. 4th 107, 115.) In complaining
to Greenspan, Musk was not participating in public debate or discussing matters of public significance.
He was instead lashing out; concocting charges of criminal conduct against a graduate student who had
Tesla employees and "almost killed" two or more of them, simply do not fall within the anti-SLAPP
protections of§ 425.16(e)(4).
B. There was no pending litigation sufficient to invoke subdivision (c)(2).
Musk invokes§ 425.16(e)(2), arguing that his charges dealt with "issues that were pending
before the Court." (Motion at 7-9). He is incorrect. Section 425.16(e)(2) "protects only those 'written
or oral statements or writings made in connection with an issue under consideration or review"' by an
official body, including a court. (laker v. Bd. ofTrs. of Cal. State Univ. (2019) 32 Cal. App. 5th 745,
765-66, cleaned up, quoting Rand Resources, llC v. City o_fCarson (2019) 6 Cal.5th 610, 627.) "The
subdivision thus appears to contemplate an ongoing-----or, at the very least, immediately pending
official proceeding." (Ibid.) "Conversely, if an issue is not presently 'under consideration or review'
by such authorized bodies, then no expression-----even if related to that issue----could be 'made in
connection with an issue under consideration or review."' (Ibid.)
Musk's knowledge that Greenspan might re-broadcast his charges to the world docs nol render them "public
conversation about a matter of public interest." The two incidents simply were not "of public interest." and
Musk's insistence on conducting his smear campaign through Greenspan does not change this fact.
Document received by the CA 1st District Court of Appeal.
the temerity to suggest the emperor has no clothes. Musk's false charges that Hothi "actively harassed"
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Here, Tesla abandoned its claim against Hothi by voluntarily dismissing its Harassment Action
on July 26, 2019. And while Hothi would later file a motion for fees, that motion had not yet been filed
on Aug. 7, 2019, when Musk sent his e-mail, and was ancillaiy to the case in any event. At the time of
Musk's accusations, there simply was no "issue under consideration or review" by any court. Musk
argues that an evidence-preservation letter (which he inaccurately calls a "demand letter," Motion at
8:21-23) means his accusations were made "in connection with" impending litigation. However, Musk
does not claim he knew of the letter at the time. More importantly, the litigation Hothi was considering
was unavailable to Hothi because harassment actions as a matter of law may not give rise to a
actions are not subject to malicious prosecution claims].) Where litigation not only was untiled but as
Document received by the CA 1st District Court of Appeal.
a matter of law could never be filed, it simply cannot be said to be "impending." It would be manifestly
unfair to extend protection to Musk for statements he made about Hothi after Tesla withdrew from
litigation because Musk and Tesla were unwilling to back up Tesla's allegations with video and
photographic evidence Tesla admitted to having in its possession
evidence Musk (and Tesla) still
refuse to show to this day, even in support of Musk's Motion.
IL
Hothi Has a High Probability of Prevailing on the Merits of His Claim.
A. Musk's allegations constitute defamation per se.
"Defamation consists of, among other things, a false and unprivileged publication, which has a
tendency to injure a party in its occupation." (Summit Bank v. Rogers (2012), 206 Cal. App. 4th 669,
defamation per se under Cal. Civ. Code§ 46.1. (De!ifartini v. DeMartini (On Reh 'g) (9th Cir. Dec. 23,
2020) . . . . . . . . . F. App'x
, 2020 WL 7658347, *2; Barnes-Hind, Inc. v. Superior Court (1986) 181 Cal.
App. 3d 377 ["Perhaps the clearest example of defamation per se is an accusation of a crime"], cleaned
up.) Hothi's claims certainly have at least the "minimal merit" needed to defeat Musk's anti-SLAPP
motion. (Overstock.com, supra, 151 Cal. App. 4th at p. 699).
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Musk does not deny he accused Hothi of improper and unlawful conduct under California law
assault with a deadly weapon, his car (Cal. Penal Code§ 245(a)(I )); People v. Bipialaka (2019) 34 Cal.
App. 5th 455,459. Musk's charges that Hothi "actively harassed" Tesla employees, and "almost killed"
some, are both actionable. Hothi provides prima facia evidence that the statements are false.
8. Musk fails to establish any valid defense or llfivilege.
1. Musk fails to raise any argnment relating to his charge that Hothi "almost
killed" Tesla emplovees other than James.
Musk, in seeking to establish the truth of his "almost killed" charge, discusses that statement
Jo solely in the context of James and the Februaty 2019 parking lot incident. (Motion at 11 ). But he ignores
that by its plain terms, his statement accused Hothi of almost killing two or more Tesla "employees."
Document received by the CA 1st District Court of Appeal.
12 Although another Tesla employee was present, Musk does not allege that Hothi came near the other
13 employee. In fact, in his declaration, James testifies the other employee stayed back to photograph the
14 exchange. (Declaration of Tyler James, ii 3 ["I would be the contact officer and he would be the cover
15 officer to obtain photographs."].) Because Musk has failed to brief any issue pertaining to his "almost
16 killed" charge against Tesla employees other than James, he cannot obtain dismissal on that portion of
17 Hothi's claim. (Behr v. Redmond (2011) 193 Cal. App. 4th 517, 538 [failure to brief issue waives it].)
18 Even were this Court to grant the rest of Musk's Motion, at a bare minimum the case must go forward
19 as to the other "employees" whom Musk claimed Hothi "almost killed."
2. Musk's other statements were not opinion but contained provably false
assertions of fact.
As to his other statements, Musk's main argument is that they were true, or protected opinion.
(Motion at 9-11 ). Again, he is incorrect.
Since Milkovich v. Lorain Journal Co. (1990) 497 U.S. I, even something couched in terms of
opinion may be actionable where it implies an assertion of objective fact. (Bently Reserve L. P., supra,
218 Cal. App. 4th at p. 426, citing Milkovich, 497 U.S. at p. 18-19 and Overstock.com, supra, 151 Cal.
App. 4th at p. 701.) "The key is not parsing whether a published statement is fact or opinion, but
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'whether a reasonable fact finder could conclude the published statement declares or implies a provably
false assertion offact."' (Id., quoting Franklin v. Dynamic Details, Inc. (2004) 116 Cal. App. 4th 375,
385, citing Milkovich, 497 U.S. at p. 19, emphasis added.) "A court must put itself in the place of an
average reader and determine the nature and probable effect of the statement." (Bently, supra, 160 Cal.
Rptr. 3d at p. 427, cleaned up.)
Musk's statements to Greenspan are actionable because a reasonable factfinder easily could
conclude that each declares and/or implies a provably false assertion of fact. Musk declared that Hothi
engaged in unlawful conduct under Cal. Civ. Code § 527.6 and/or § 527.8 in that he "actively
harassed ... Tesla employees." Indeed, Musk argues the harassment statements, and his complaint that
James was strnck, are trne - thus establishing the allegations as ones of fact, not protected opinion.
Document received by the CA 1st District Court of Appeal.
(Motion at 10-11 ). (As Hothi's Declaration makes clear (ilil 33-34, 37), at no time did he ever "harass"
any Tesla employee). Musk's false view that Hothi "actively harassed ... Tesla employees," based on
implied, undisclosed facts, thus is actionable as a provably false assertion of fact.
Bently precisely supports that conclusion. There, a landlord sued a fonncr tenant who posted a
derogatmy Yelp review including complaints that poor building conditions "(likely) resulted in the
death of three tenants ... and the departure of eight more." Denying defendant's anti-SLAPP motion, the
Court of Appeal first rejected his hedging use of "likely" as immaterial in trying to insulate his
comments from liability. (218 Cal. App. 4th at p. 428, citing Milkovich, 497 U.S. at p. 18 and Weller v.
ABC (1991) 232 Cal. App. 3d 991,1004.) The court noted that defendant "went out of his way to win
credibility with his audience" by describing his post as "[his] own first-hand experience with this
building, and its owners," gained over "many years." (Bently, supra, 218 Cal. App. 4th at pp. 428-429 .)
As the court noted, "[sluch assurances suggest facts are being communicated, not opinions. (Id. at p.
429, citing Elder, Defamation: A Lawyer's Guide (2012) Fact Versus Opinion, § 8:2 [representation
that speaker has "private, firsthand knowledge relevant to the fact/opinion distinction] and Super Future
Equities, Inc. v. Wells Fargo Bank Minnesota, N.A. (N.D. Tex. 2008) 553 F. Supp. 2d 680,689 [where
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defendant "claims to verify the accuracy of the information he posts," his online "statements are not
protected opinions"].)
The comt further pointed to Wong v. Jing (2010) 189 Cal. App. 4th 1354, in which a dentist
sued for defamation over a Yelp post. The Wong court found that plaintiff carried her burden under the
second anti-SLAPP prong because the detail defendant gave under the guise of personal knowledge
would allow a reasonable jury to conclude that the review falsely implied various acts of wrongdoing
by the dentist. (Bently, supra, 218 Cal. App. 4th at pp. 432-433, citing Wong, 189 Cal. App. 4th at pp.
1372-75.) Applying that rule, the comt noted the tenant's comment was "every bit as factually specific
and earnest as the Yelp review in Wong," containing statements "that could reasonably be understood
[plaintiffs] Building as a future residential choice." (218 Cal. App. 4th at pp. 433.)
Document received by the CA 1st District Court of Appeal.
as conveying facts - each provable and each meant to be used by prospective tenants to evaluate
So, too, with Musk's comments. His "factually specific and earnest" comments to Greenspan
could be reasonably understood as having conveyed facts that Hothi drove so recklessly as to nearly
kill several employees, and that he unlawfully harassed Tesla's employees. Musk spoke as someone in
a position to know the veracity of his accusations. Indeed, he claims he believed the accusations were
true, and claims his information came from employee reports.
3. No affirmative defenses salvage Musk's statements.
Where defendant raises an affirmative defense in its anti-SLAPP motion, "the court, following
the summary-judgment-like rubric, generally should consider whether the defendant's evidence in
support of an affinnative defense is sutlicient, and if so, whether the plaintiff has introduced contrary
evidence, which, if accepted, would negate the defense." (Long Beach Unified Sch. Dist. v. Margaret
Williams, LLC (2019) 43 Cal. App. 5th 87, 100, as mod/fied on denial of reh 'g (Dec. 31, 2019), citing
Bently, supra, 218 Cal. App. 4th at pp. 434.)
Musk has uot provided these reports. If they exist, they may have been prepared only after Musk requested
27 them, or may have been fabricated in an effort to cnrry favor with the famously short-tempered CEO.
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The substantial truth doctrine does not apply.
including "substantial truth"
is a complete defense to a libel claim. (Summit Bank,
3 supra, 206 Cal. App. 4th at p. 697. But "not every word of an allegedly defamatory publication has to
4 be false and defamatory" to be actionable. (Bently, 218 Cal. App. 4th at p. 434, citing .Masson v. New
5 Yorker Magazine, Inc. (1991) 501 U.S. 496, 510 ["the test of libel is not quantitative; a single sentence
6 may be the basis for an action in libel even though buried in a much longer text"], cleaned up.) Musk's
7 assertion of the defense (Motion at 10) fails.
Where the defamatory statement alleges criminal conduct, and defendant fails to offer evidence
9 to support its truth while plaintiffs evidence rebuts its factual underpinnings, plaintiff meets her
JO "minimal burden" of disproving the "substantial truth" defense. Thus, in Bently, the court noted that
the "standout" among defendant's alleged defamatory remarks was his comment that the "deaths" of
Document received by the CA 1st District Court of Appeal.
12 three former building tenants were "likely" connected to plaintiffs conduct. However, defendant
13 presented nothing beyond speculation to support that, and plaintiff offered directly rebutting evidence,
14 i.e., that two of the tenants were still alive and the third died from pneumonia and cancer. (Bently,
15 supra, 218 Cal. App. 4th at p. 435.) Defendant's statement thus could in no way be dismissed as a
16 "slight inaccuracy," and plaintiff carried its "minimal burden under the anti-SLAPP statute as to
17 probable merit of their libel claim." (Ibid).
The same analysis compels denial of Musk's Motion. While Musk published to Greenspan that
J9 Hothi "actively harassed" Tesla employees, Hothi's Declaration affirmatively establishes that he did
20 not. Musk not only failed to present evidence to the contrary, but in fact Tesla quickly dismissed the
Harassment Action when the court ordered it to disclose any such evidence. Similarly, while Musk
22 alleged that Hothi "sideswiped" and "almost killed Tesla employees," Hothi's Declaration establishes
23 that as fiction - and Musk offers no contrary evidence. Importantly, Musk has audio and video evidence
24 of both the parking lot incident and roadway incidents, but nonetheless decided not to submit that
25 evidence in support of his argument that the allegations are substantially true. Simply put, Musk's
26 allegations of criminal and near-criminal conduct by Hothi are not even substantially true.
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b) Hothi is not a public figure, but e11en if he were, there is ample evidence of
actual malice.
For a plaintiff to be a limited purpose public figure, "there must be a public controversy about
a topic that concerns a substantial number of people" and "the plaintiff must have voluntarily acted to
influence resolution of the issue of public interest." (Grenier, supra, 234 Cal. App. 4th at p. 484, citation
omitted.) Even if plaintiff has thrust himself into the public eye, "the alleged defamation must be
gennane to [his] participation in the public controversy" to render plaintiff a limited-purpose public
figure. Id.
In Grenier, though plaintiff sought public attention as a pastor, author, and radio host, he was
deemed not a limited-purpose public figure for purposes of defendant's allegations of child abuse, child
molestation, tax evasion and theft. The plaintiff"must have voluntarily acted to influence the resolution
such a controversy." (Id. at p. 485.)
Document received by the CA 1st District Court of Appeal.
of a discrete public controversy. The subject of morality is too general and amorphous to qualify as
Musk's asserts a general "public debate" regarding Tesla's vehicles and manufacturing
processes (Motion at 12-13), but frames the public controversy at too generic a level. Just as the overly
broad definition in Grenier would have transfmmed all clergy into all-purpose public figures (234 Cal.
App. 4th at 485), Musk's theory would make anyone who Tweets about Tesla into a general-purpose
public figure, fair game for defamation at will by the bullying billionaire.
Nor are Musk's allegations gennane to any public controversy. While Musk asserts that because
his defamatory comments came in the context of an email exchange with Greenspan, Greenspan is
therefore allowed to set the parameters of germaneness, Musk offers no case law to support that novel
theory. In any event, Musk makes the same analytical mistake he made when he erroneously asserted
that the hero of the Thai cave rescue was a limited-purpose public figure. In Unsworth, supra, the court
rejected Musk's argument because "there is simply no credible connection" between pedophilia and
the cave rescue, such that Unsworth was a public figure for Musk's assertions of criminal conduct.
(Unsworth, supra, 2019 Wcstlaw 8220721, at p. 7.) Herc too, there is simply no credible link between
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the public debate over Tesla and its business practices, and the allegation that Hothi "almost killed"
Tesla employees whom he happened to spot while driving on a public roadway.
In any event, even ifHothi is a public figure, actual malice abounds here. Musk gives this Court
an incorrect definition of it (Motion 14-15) omitting the part that is fatal to his argument. As courts
(including this one) have made clear,
The malice necessary to defeat a qualified privilege is "actual malice" which
is established by a showing that the publication was motivated by hatred
or ill will towards the plaintiff or by a showing that the defendant lacked
reasonable grounds for belief in the truth of the publication and therefore
acted in reckless disregard of the plaintiffs rights.
(Duongv. JTT Educ. Svcs., Inc., Super. Ct. No. RG14724442 (May 5, 2016), at p. 7, quoting (Lundquist
44 Cal. App. 3d 926, 936.)
Document received by the CA 1st District Court of Appeal.
v Reusser (1994) 7 Cal. 4th 1193, 1213, (emphasis added); accord Roemer v. Retail Credit Co. (1975)
Here, there is ample evidence that Musk was motivated by hatred or ill will. He caused Tesla
to file the baseless Harassment Action. On the day Tesla did so, Musk published a photo of a lewd
Tesla identification badge featuring a cartoon character in the shape of a penis and buttocks, with the
character labeled "Totally Legitimate" and the classification labeled "Espionage." (Hothi Deel., ii 41.)
As Hothi notes, this insult was obviously aimed at him. (Ibid.) Musk's consistent modus operandi has
been to publicly slur those whom he perceives to be critics of him or his company, with Vernon
Unsworth, the cave diver, being the paradigmatic example. (Ibid; see also Ex. 9 thereto.) Even the
undersigned counsel is not immune. (See Musk Deel., Ex A, at p. I.) Musk's Motion here drips with
contempt for Hothi, whom he (without evidence) calls a "conspiracy theorist obsessed with spreading
misinformation online about Tesla." (Motion at I :3-5.) And this lawsuit was prompted by Musk's
utterly baseless invention of the accusations that Hothi "actively harassed" and "almost killed" multiple
Tesla employees.
CONCLllSION
For the reasons set forth above, the Court should deny Defendant's Special Motion and allow
27 Plaintiffs action to proceed.
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Respectfully Submitted,
By
Date: January 11,
D. Gill Sperlein
THE LAW OFFICE OF D. GILL SPERLEIN
Lawrence J. Fossi (pro hac vice)
Attorneys for Plaintiff Randeep Hothi
Document received by the CA 1st District Court of Appeal.
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Exhibit Number
FILED BY FAX
ALAMEDA COUNTY
D. GILL SPERLEIN, SBN THE LAW OFFICE OF D. GILL SPERLEIN
2 345 Grove Street
San Francisco, CA 3 Telephone: (415) 404-Facsimile: (415) 404-4 g:ill@sperleinlaw.com
January 12, CLERK OF
THE SUPERIOR COURT
By Shabra lyamu, Deputy
CASE NUMBER
RG
5 LAWREN CE J. FOSSI, TX SBN 07280650 (pro hac vice)
25 Hawthorn Lane
6 Bozeman, MT Telephone: (713) 854-7 lawrence.fossi(moutlook.corn
8 Attorneys for Plaintiff Randeep Hothi
SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF ALAMEDA
UNLIMITED JURISDICTION
14 RANDEEP HOTH!, an individual,
Plaintiff,
V,
Case No: RGASSI.GNED FOR ALL PURPOSES TO:
JUDGE JULIA SPAIN
DEPT. 520-HAYWARD HALL OF
JUSTICE
)
ELON MUSK, an individual,
)
)
)
)
)
)
Defendant.
)
)
)
)
DECLARATION OF RANDEEP HOTIII IN
SUPPORT OF HIS OPPOSITION TO
DEFENDANT'S SPECIAL MOTION TO
STRIKE
)
) BY FAX
)
)
)
)
)
Judge: Julia Spain
Dept.: Date: Janumy 27, Time: I :30 p.rn.
Document received by the CA 1st District Court of Appeal.
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I, Randeep Hothi, declare as follows:
1.
I am the plaintiff in this action. At all times relevant to this action, I have been a graduate
student in Asian Languages & Cultures at the University of Michigan (and recently was admitted to a
joint degree program that includes Anthropology), with a pemianent residence in Fremont, California.
2.
I am over the age of eighteen and I make this declaration based upon personal, firsthand
knowledge, and if called and sworn as a witness, I could and would testify competently about the
matters set forth in this declaration.
3.
Defendant Elon Musk describes me as "a conspiracy theorist" who has spread
"misinformation online about Tesla." [Motion at 1:3-5] He offers no evidence for these assertions, and
both are false. I regard myself as a citizen journalist whose research and data gathering have revealed
Document received by the CA 1st District Court of Appeal.
discrepancies in claims Tesla, Inc. ("Tesla") and its CEO, Defendant Musk, have made about Tesla's
manufacturing operations, technological capabilities, financial health, and treatment of its employees
and customers.
My Skepticism about Tesla's 'Alien Dreadnought' & Full Selt~Driving Claims
4.
In 2015, I developed an interest in Tesla's business and, in particular, Tesla's claims
about its technology. Over time, I became skeptical of several of those claims, including that Tesla was
developing revolutionary manufacturing capabilities and that Tesla was close to achieving full self-
driving capability.
5.
In March of 2017, I created a Twitter account under the handle of@skabooshka. In my
Twitter postings, I shared my skepticism about Tesla's claims. At all times in those postings, I
attempted to remain anonymous.
6.
In August of 2016, Musk began claiming that Tesla's manufacturing processes for its
forthcoming Model 3 car would be hyper-automated, able to function largely without human input, and
superior to those of other automobile manufacturers. Musk called these processes "alien dreadnought."
7.
I was skeptical of Musk's "alien dreadnought" claims and believed Tesla's
manufacturing capabilities were actually inferior to those of most other automobile manufacturers.
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In February 2017, I read Tesla's announcement in its quarterly update letter that it
expected to exceed a weekly production rate of 5,000 Model 3 cars by year-end, and to achieve a weekly
rate of 10,000 at some point in 2018. Tesla repeated these claims in May and August of 2017.
9.
Also in February of2017, Tesla claimed it was on track to begin Model 3 production in
July. Tesla did deliver Model 3 cars in July, but only 30, and those only to employees. r later learned
the cars delivered in July were, in significant part, built by hand, which practice continued at least into
September. Attached as EXHlBlT 1 is a newspaper article that I read at the time, one of several,
reporting that the Model 3 cars were built by hand, from which I fonned my opinion about this matter.
I 0.
By early 2018, I had begun calculating the production at Tesla's Fremont factory, where
the Model 3 was made. I did so by means of tracking the flow of vehicles leaving the factory, counting
Document received by the CA 1st District Court of Appeal.
newly-produced vehicles in the factory's storage lots, and speaking with employees at the public Tesla
sales center located on the factory grounds. From making these observations, r determined that Tesla's
production rate was significantly below the rate promised by Tesla, and I shared my findings on Twitter.
I 1.
By May of 2018, Tesla had backtracked significantly on its earlier promises. It
announced in its QI 2018 quarterly update letter, which I read, that it was targeting a Model 3 weekly
production rate of 5,000 "in about two months."
12.
In June of 20 I 8, I observed Tesla's constmction of a tent in which to place an assembly
line for the Model 3. Like hand-building the early Model 3 cars, Tesla's use of a tent structure seemed
to me a far cry from an "alien dreadnought" factory, and I tweeted about it.
13.
I was also skeptical about "full self-driving," the sale of which feature has been a
material and important component of Tesla's revenues based on its own reporting.
I4.
In October of 2016, Musk stated that by the end of 2017, a Tesla vehicle would be able
to drive from Los Angeles to New York City with no human intervention.
15.
As of the date of this Declaration, Tesla charges customers $10,000 for purchasing its
"full self-driving" (a capability that does not yet exist; driver attention and intervention is required).
According to Tesla's SEC filings, which I occasionally review, Tesla has collected hundreds of millions
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of dollars in revenues from the sale of its "full self-driving" feature, promising its customers that such
capability was imminent.
The February 21, 2019 Parking Lot Incident
16.
On February 21, 2019, I lawfully entered a publicly accessible area of Tesla's Fremont
factory and showroom grounds with the intention of visiting the showroom and asking a salesperson
about the availability of Tesla cars in various colors and with various options. I decided to rest for a
few moments in my car and gather my thoughts before visiting the sales center on the factory grounds.
I parked in an area accessible to the public, with my car backed into the parking space.
17.
While in my car, a Tesla vehicle parked nearby. A man exited the Tesla vehicle,
approached my car, and began knocking on my driver's side front window. In legal pleadings, Tesla
Document received by the CA 1st District Court of Appeal.
has identified the man as a Tesla security officer named Tyler James. I did not notice any markings on
the Tesla vehicle that would identify it as a Tesla security vehicle, nor did it appear to me that Mr.
James was wearing any uniform that would identify him as a Tesla security officer.
18.
I now believe Tesla sent Mr. James to confront me because Tesla had earlier identified
me from the license plate on my car, and knew I was reporting on Tesla's production rate.
19.
On April 19, 2019, Tesla obtained a temporary restraining order against me, with no
prior notice to me, and without me having an opportunity to appear to contest its issuance, in the case
of Tesla, Inc. v. Randeep Hothi, Case No. RG19015770, Superior Court of the State of California (the
"Harassment Action"). Tesla's petition was filed under CCP § 527.8, which allows for expedited
injunctive relief in instances of "workplace harassment." A true and complete copy of the petition is
attached hereto as EXHIBIT 2.
20.
The Harassment Action was focused on an incident on April 16, 2019, which l will
describe later in this Declaration. However, the Harassment Action mentioned the February 21,
incident as well.
21.
On May 7, 2019, with the Harassment Action pending, I went to the Fremont Police
Station and requested a copy of the police reports relating to the February 21, 2019 event. A true and
.. 4..
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complete copy of the police reports the Fremont Police gave me is attached as EXHIBIT 3. I have
added an exhibit number and page numbers in the lower right-hand comer of each page.
22.
My belief that Tesla had earlier identified me from the license plate on my car is
supported by the March 15, 2019 police report prepared by Officer Mathew Kerner, who took
"Statement #2 from Tyler James" and wrote:
On 3/15/19, I took another statement from James due to him saying he has further
infonnation. In essence, he told me the following: On 02/21 /l 9, at approximately
1411 hours, Tesla security got a hit on their license plate readers that there was
a vehicle in the lot that was not supposed to be on the property. [Ex. 3, p. 5.]
23.
My belief is also supported by Defendant's sworn statement in this lawsuit:
During the course of 2018 and 2019, I became aware through Tesla employees
that an individual was posting photos and videos of the Tesla Fremont factory
employee parking lots and logistics lots on Twitter. [Declaration of Elon R.
Musk in Support of His Motion to Strike the Complaint, ~14]
24.
Document received by the CA 1st District Court of Appeal.
After Mr. James knocked on my window, I decided that rather than risk any
confrontation, I would leave the factory site. I drove forward slowly out ofmy parking space and exited
the Tesla parking lot. I did not believe then and do not believe now that I struck Tyler James or any
other person. If I had thought I had struck anyone, I would have stopped. I later learned that Tesla had
recorded the interaction, and I believe the recordings will establish that my car did not come into contact
with Mr. James.
25.
Mr. James is the only person who has ever claimed my car struck him, or came close to
striking him, in connection with the February 21, 2019 incident.
26.
The Harassment Action alleged (among other things) that on February 21, 2019, in the
parking lot of Tesla's Fremont facility, I had "hit Tesla's security employee" (note the singular noun:
just one employee) with my car and then "fled the scene" in a "reckless manner" as I exited the parking
lot. (EXHIBIT 2, Harassment Petition, §5.) Without any notice to me by Tesla or the Court, the Court
entered a TRO on the same day Tesla made the filing, ordering me to stay at least 10 yards away from
any Tesla vehicle with manufacturer plates within five miles of Tesla's Palo Alto headquarters and
setting the matter down for an injunction hearing (later delayed) on May 7, 2019.
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As is clear from the police reports, the police reviewed both cell phone footage taken by
Tyler James and "video from Tesla security cameras." (EXHIBIT 3, at P. 2, i1s of narrative section.)
The police reports do not clearly indicate that the police detennined my car ever grazed Mr. James. The
police reports indicate Mr. James "had no visible injuries or bruising." (Id. at p. 5, Statement t/2 from
Taylor James.) In one entry, Police Officer Matthew Kerner states: "I watched the video on James'
work cellphone and I was unable to sec much of the incident. I did see Hothi in the vehicle, but I was
unable to see anything further to solidify James' statement." (Id., P.5, ill.)
28.
Officer Kerner later advised another officer: "[a]s James approached the vehicle, [Hothi]
drove away at a slow rate of speed. [Hothi's] vehicle struck .lames' knee." (id., p. 2, Narrative
il3,
emphasis added.) I believe Officer Kerner's statement that my vehicle stmck the knee of Mr. James is
Document received by the CA 1st District Court of Appeal.
based solely on what Mr. James told him. Further, Kerner "advised that it did not appear to be an
intentional act;" that "James also did not believe the driver of the vehicle intended to hit him with his
vehicle;" and "James did not have any injuries." (Id., il4, emphasis added.)
29.
In the Harassment Action, I sought production of, among other things, "Any and all
documents including photographs, video, or other recordings made of the February 21, 2019 incident"
and "Any and all 'documents' that describe, relate to or evidence any injuries sustained by Tyler James
during the February 21, 2019 incident." My counsel presented these requests to the Court in a May 23,
2019 letter brief regarding discovery, which I have attached as EXHIBIT 4. (See Requests Six and
Seven, p. 3.)
30.
Tesla opposed any production whatsoever. (See Tesla's June 3, 2019 letter brief
opposing discovery attached as EXHIBIT 5.) The Court in the Harassment Action, noting that
discovery is not typically allowed in such expedited harassment actions, ordered Tesla to produce
certain items, including the discovery sought in Requests Six and Seven, but denied others. I have
attached the Court's Order on Requests for Discovery dated July 1, 2019 as EXHIBIT 6 and the Court's
July 18, 2019 Order on Motion to Clarify Order of 7/1/19 on Requests for Discovery as EXHIBIT 7.
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It is evident from the police reports that Mr. James or Tesla or both of them attempted
to have a state prosecutor indict me for "hit and run;" however, upon reviewing the evidence, "the DA 's
Office declined to prosecute any crimes involving this incident." (EXHIBIT 3, p.5, Disposition
Section, ,is.)
32.
It is my belief, borne out by numerous materials I have read through the years, that
Defendant Musk actively manages Tesla and that nothing of any significance happens without his
approval if not direction. I do not believe Mr. James would have attempted to have me indicted for a
hit and run offense without the encouragement or, at least, assent, of Defendant Musk. I do not believe
Tesla would have attempted to have me indicted for a hit and run offense unless directed to do so by
Defendant Musk.
33.
At no time in making observations of and at the Tesla factory in Fremont, including on
Document received by the CA 1st District Court of Appeal.
February 21, 2019, and at no time thereafter to the present day, did I follow or stalk any Tesla employee
to or from the place of work, enter the Tesla factory, follow any employee during hours of employment,
or send correspondence to any Tesla employee by any means. Further, at no time to the present day did
I ever make telephone calls directed to any particular Tesla employee; 1may have made phone calls to
Tesla sales centers to gather information, but none of those phone calls would have been directed to
any particular employee, as I did not know (or care about) the identity of any particular Tesla employee.
34.
At no time in making observations of and at the Tesla factory in Fremont, including on
February 21, 2019, and at no time thereafter to the present day, did I ever make any statement or engage
in any course of conduct that would place a reasonable person in fear for his or her safety or that of his
or her family.
The April 16, 2019 Roadway .Incident
35.
On April 16, 2019, while driving from my family's home in Fremont to an appointment
in San Francisco on Interstate 880, 1noticed a Tesla vehicle bearing manufacturer plates and with roof-
mounted cameras enter the freeway to the right of my vehicle. 1surmised that the vehicle was recording
audio, video, and/or other data intended for possible use at Tesla's upcoming and highly-publicized
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"Autonomy Day," scheduled for April 22, 2019, at which Tesla had announced it would show off its
"autonomous driving" capabilities.
36.
At the time I believed, and to this day I believe, that Tesla's self-driving technology is
profoundly flawed and dangerous to the public, especially as Musk has often made grandiose and
misleading claims about Tesla's "autonomous driving" capabilities.
37.
The Tesla test vehicle was headed in the same direction I was headed. I observed the
Tesla test vehicle and at times photographed it (both still photos and short videos) for approximately
one-half hour. At no point did I drive recklessly or endanger the safety of the Tesla vehicle's occupants.
At no point did I swerve toward the Tesla vehicle or attempt to trigger its automatic response systems.
occupant of the Tesla vehicle in fear for his or her safety, or the safety of his or her family.
38.
Shortly after observing the Tesla vehicle, I posted on Twitter some of the photographs I
had taken.
39.
Up until the filing of the Harassment Action, I was still largely anonymous on Twitter;
very few people knew that @skabooshka was Randeep Hothi.
40.
Document received by the CA 1st District Court of Appeal.
At no point did I make any statement or engage in any course of conduct that would place a reasonable
In the wake of Tesla obtaining its TRO, I received a torrent of abuse on Twitter and
other social media outlets. I was accused of being a terrorist, a criminal, and a homicidal maniac. Some
Tesla fanatics directly contacted the University of Michigan and urged it to expel me as a student.
41.
On the same day Tesla filed its petition in the Harassment Action, Defendant Musk
posted on Twitter the photo of an obscene Tesla identification badge featuring a cartoon character in
the shape of a penis and buttocks (sometimes referred to by commentators as "dickbutt") with the
character labeled "Totally Legitimate" and the classification labeled "Espionage." The photograph of
the badge has since been removed. However, other sources have republished the badge. I obtained an
exact copy from the website reddit.com at the link https://www.reddit.com/r/teslamotors/comments/
bf2cnp/elons_twitterprofile picture previouslyjt_was/. A true and correct copy of the identification
badge is attached hereto as EXHIBIT 8. Given the contemporaneous filing of the Tesla petition, and
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my earlier work observing Tesla's production rates, tent construction, and Autonomy Day testing,
Defendant's publication of the badge was obviously an insult aimed at me.
My Discovery Requests, and Tesla's Repeated Refusals to Produce Evidence
42.
On May I, 2019, 1 requested a continuance of the temporary injunction hearing in the
Harassment Action. In making the request, I detailed Defendant Musk's claim at the Autonomy Day
event that Tesla would have one million "robotaxis" on the road within a year, and listed instances in
which Tesla had retaliated against its critics. I have attached the request I filed (but without the
voluminous exhibits to that request) as EXHIBIT 9. I asked the Court to allow limited discovery in
advance of the temporary injunction hearing. (Ibid.)
43.
The Court granted the continuance to May 21, 2019 and stated my "request for discovery
Document received by the CA 1st District Court of Appeal.
may be agreed upon by the parties or addressed at the hearing." The next day, I served a document
request with 11 items. I sought all recordings Tesla had made of the February 21 and April 16 incidents,
as well as police incident reports, documents showing the alleged injury to Mr. James, documents
showing the Model 3 occupants were Tesla employees, and Tesla's file on me. Tesla's counsel emailed
my counsel, declining to produce any documents, citing the general rule that in workplace violence
injunction cases, with their abbreviated time schedules, discovery is typically not allowed. A copy of
the e-mail is attached as EXHIBIT 10.
44.
In a filing with the Court, Tesla's lead counsel, relying on his own declaration, claimed
that I "and [my] followers" had "engaged in '
of this matter," and insinuated there was a "coordinated attempt by Mr. Hothi and his followers to
further intimidate and harass the victims of Mr. Hothi's conduct." I have attached the filing, Tesla's
Reply Memorandum in Support of Restraining Order re Randeep Hothi, here as EXHlBIT 11. (Seep.
9:21-24.) Later, when Tesla dropped its case in order to avoid providing the limited discovery the Court
directed it to produce, Tesla's counsel repeated this claim in a letter to the Court as an excuse for its
actions. l have attached a copy of that letter as EXH1HIT 12. Tesla's accusations were evidence-free,
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false, and in my view were a classic instance of gas lighting, as I was the person who had been doxed
and harassed by Tesla and its many fanatics.
45.
At the scheduled hearing on May 21, 2019, Tesla's counsel was accompanied by none
of the witnesses who had sworn out declarations in support of its TRO petition. In other words, Tesla
brought no fact witnesses to a hearing where, as the Petitioner, it was required to meet a clear and
convincing evidentiary standard. I appeared with my counsel, a witness (besides myself, as I also
intended to testify), and documentary evidence.
46.
Because the Court's docket was congested, the Court reset the hearing for July 26, 2019.
The Court invited letter briefs from counsel addressing my discovery request. In my letter brief; I noted
Tesla had numerous video recordings of both incidents which would likely be dispositive about whether
declarations attached to Tesla's petition. (See EXHIBIT 4, pp. 6-8.)
47.
Document received by the CA 1st District Court of Appeal.
the alleged violent conduct occurred, and noted that the police reports appeared to contradict the sworn
Tesla continued to object to any production, claiming undue burden, privacy,
confidential business information, and attorney work product. (See EXHlBIT 5.) Further, Tesla sought
to exclude the public and press from the temporary injunction hearing. (Id., p. 11.) Tesla also took a
gratuitous swipe at my legal counsel, insinuating he was trying to run up legal fees, falsely claimed my
counsel had failed to offer legal support for the discovery requests, and introduced into evidence a
plainly inadmissible settlement communication. (id. p. I.)
48.
The Court on July I, 2019 detennined limited discovery was appropriate on the facts of
this case, and ordered both Tesla and me to produce, on or before July 16, all photographic, audio, and
video recordings of the two incidents. (See EXHIBIT 6, Order on Requests for Discovery, p. 5: 14-18.)
The Court noted that "[a]ny such recordings would be directly relevant to the claims and defenses in
this case." (Id. at p. 14-16.)
49.
Several days later, new counsel substituted in for Tesla and immediately filed a Motion
for Clarification or Partial Reconsideration of July 1 Discovery Order and Protective Order. A copy of
that Motion and Proposed Order is attached as EXHIBIT 13. Tesla for the first time argued that the
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40-minute audio track from the interior mounted camera contained discussions that were personal,
private, sensitive, and business-confidential, and sought to exclude it from the discovery order. In its
form of proposed protective order, Tesla included an order that the public and press be excluded from
seeing or hearing any of the recordings. (Id., pp. 2:9-17, 4:5-15.)
50.
My counsel, at my direction, offered to have Tesla furnish us with a list of the portions
of the audio recording it wanted protected, and to have the Court take up the matter if Tesla and I could
not agree on whether to exclude such portions. (See, Hothi's Opposition to Motion for Clarification or
Partial Reconsideration of July I Discovery Order and for Protective Order dated July 11, 2019,
attached as EXHI.BIT 14, p. 4:3-8.)
51.
On July 18, the Court confirmed its holdings in its July I order, and promised to review
Tesla's recordings in camera for relevance. (See EXHIBIT 6.)
52.
Document received by the CA 1st District Court of Appeal.
Pursuant to an earlier agreement of the parties, Tesla had until July 19 to produce the
recordings. I had already produced all responsive photographs and videos. Late in the day on July 19,
Tesla's counsel submitted a letter to the Court advising it would withdraw its petition rather than
produce the recordings. (Sec EXHIBIT 12.) Based on Tesla's action, the Court entered an order of
dismissal in the Harassment Action on July 26, 2019. A copy of the Order of Dismissal is attached at
EXHIBIT 15.
I declare under penalty of pe1jury under the laws of the State of California that the foregoing is
true and correct and that this document was executed in Oakland, California.
)
22 DATED: January 11, Randeep Hothi
-------------------------------
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DECLARATION
OF
RANDEEP HOTHI
EXHIBIT
Document received by the CA 1st District Court of Appeal.
From: The Law Office of D GI Fax:
CASE No. RGI
DECLARATION OF RANDEEP HOTH!- EXHIIllT
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Behind Tc-:la's Production Delays: Palts of Model 3 Were Being Made by Hand"' WSJ
This copy is for your persona!, non-commercial use only. To order presentation-ready copies for distribution to your colleagues, dients or customers visit
https://www. dj reprints.com
https://www.wsj.com/articles/behind- tes!as -production-delays- parts- of-mode!- 3--were- be!ng- made-by- hand-
TECH
Behi11d Tesla's Production Delays: Parts of
Model 3 Were Being Made by Hand
A sales rep helps a customer pre-order Tesla's Model 3.
PHOTO: AFP/GETTY IMAGES
By Tim Higgins
Oct 6, 2017 4:17 pm ET
FREMONT, Calif.- Tesla Inc.
TSLA 7.94% A
blamed "production bottlenecks" for having
made only a fraction of the promised 1,500 Model 3s, the $35,000 sedan designed to
propel the luxury electric-car maker into the mainstream.
Unknown to analysts, investors and the hundreds of thousands of customers who signed
up to buy it, as recently as early September major portions of the Model 3 were still being
banged out by hand, away from the automated production line, according to people
familiar with the matter.
While the car's production began in early July, the advanced assembly line Tesla has
boasted of building still wasn't fully ready as of a few weeks ago, the people said. Tesla's
:,8)
_.,
Document received by the CA 1st District Court of Appeal.
Company thb week blarnecl 'pmduction bottlenecks' for corning well sho1t of prnrnised 1,500 vehicles
l.::J
-· Ix\
~
AA
https://www .wsj .com/ artides/hehiml . ,tcslas . -production-delays--parts-.tJf.. modcl .. 3. . werc ..heing . . made ..hy . .Jrnnd . . 1507321
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Behind Tc-:la's Production Delays: Palts of Model 3 Were Being Made by Hand"' WSJ
company feverishly worked to finish the machinery designed to produce Model 3's at a
rate of thousands a week, the people said.
Automotive experts say it is unusual to be building large parts of a car by hand during
production. "That's not how mass production vehicles are made," said Dennis Virag, a
manufacturing consultant who has worked in the automotive industry for 40 years.
"That's horse-and-carriage type manufacturing. That's not today's automotive world."
Tesla introduced the Model 3 at an event outside the company's factory in July, when
Chief Executive Elon Musk drove a shiny red Model 3 onstage as hundreds of his
employees cheered the first sedans rolling off the production line.
Within minutes of stepping out of the new vehicle, Tesla's leader warned his engineers
and designers the coming months would be challenging. "Frankly, we're going to be in
production hell. Welcome, welcome!" he said to laughter.
Behind the scenes, Tesla had fallen weeks behind in finishing the manufacturing systems
to build the vehicle, the people said.
The extent of the problem came to light on Monday when Tesla said it made onlY. Model 3s during the third quarter-averaging three cars a day. The company cited
production bottlenecks but didn't explain much further.
"Although the vast majority of manufacturing subsystems at...our California car
plant...are able to operate at high rate, a handful have taken longer to activate than
expected," the company said at the time.
In Mr. Musk's pursuit to rid the world of combustion engines, Tesla is trying to apply
Silicon Valley's ethos of rapid change to the type of complex manufacturing process that
traditional auto makers have spent decades perfecting. Unusual in the U.S. tech industry,
. fx\
11lll
-\:::;
-
AA
https://w ww .wsj .com/ artides/hehiml . ,tcslas . -production- dela ys--parts . ,of.. modcl .. 3. . were-being•· made ..hy . .Jrnnd . . 1507321
Document received by the CA 1st District Court of Appeal.
In a statement, a Tesla spokeswoman declined to answer questions for this article and
said, "For over a decade, the WSJ has relentlessly attacked Tesla with misleading articles
that, with few exceptions, push or exceed the boundaries of journalistic integrity. While it
is possible that this article could be an exception, that is extremely unlikely." The Journal
disagrees with the company's categorization of its journalism.
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Behind Tc-:la's Production Delays: Palts of Model 3 Were Being Made by Hand"' WSJ
Tesla's challenge requires integrating an army of factory workers and some 10,000 parts
from suppliers around the world.
Tesla's roll out of the Model Xsport-utility vehicle in 2015 also was plagued by quality and
design issues that left suppliers scrambling and hourly workers having to rush to meet
lofty goals. But the plans for the Model 3 are far larger, meaning the lack of a fully working
assembling line so late in production could deal a bigger blow to the company.
Calling his cars a "computer on wheels,'' Mr. Musk caught conservative Detroit off guard
with Tesla's ability to quickly change features, such as a semiautonomous drive system,
with software updates over the air. The company's stock has soared about 69% in the past
12 months, at times pushing its market value past General Motors Co. 's.
But building 500,000 vehicles a year-as Mr. Musk had projected Tesla would start doing
next year-is a sizable leap for a company that only made 84,000 Model S sedans and
Model XSUVs last year. By comparison, General Motors Co., the largest U.S. auto maker by
sales, delivered about 10 million vehicles globally last year, or more than 27,000 a day.
To approach what a typical factory in North America churns out, 14-year-old Tesla must
build the muscles to roll out a car every minute of the workday and do it so well that the
vehicles don't cause headaches for customers down the road.
Most auto makers celebrate the start of production of a new vehicle to sell-so-called Job
1-after six months or so of running the assembly line to build a few hundred vehicles to
work out the bugs, said Doug Betts, senior vice president of global automotive operations
at consultancy J.D. Power and a former manufacturing executive for Toyota Motor Corp.,
Fiat Chrysler Automobiles NV and Armle Inc.
"You're not really improving the final process if you're not running on it," Mr. Betts said.
"Problems can only be solved once they are found."
AA
https://www .wsj .com/ m1ick:s/hehiml . ,tcslas . -production-delays--parts-.tJf.. modcl .. 3. . werc ..heing . . made ..hy . .Jrnml . . 1507321
Document received by the CA 1st District Court of Appeal.
Mr. Musk has said Tesla learned from the Model Xmistakes. And he has proven doubters
wrong before, creating a luxury brand that competes against BMW and Mercedes-Benz
for buyers and has demonstrated that fully electric cars can find an enthusiastic following
beyond a niche of environmentalists.
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Behind Tc-:la's Production Delays: Palts of Model 3 Were Being Made by Hand"' WSJ
willing to test the cars and return them to the company. By the time a car goes on sale, the
body shop typically fully automated.
Inside the Fremont factory, workers said equipment for the so-called body-in-white line
for the Model 3, where the car body's sheet metal is welded together, wasn't installed until
by around September. They guessed at least another month of work remained to calibrate
the tools.
"In place of the robots ...you've got two associates lining up with a big, old spot welder
hanging from the ceiling by a chain, and you've got one associate kind oflike balancing it
to
welder position, and you've
another welder with his arm
and
guiding it,'' this worker recalled seeing. "Sparks go flying."
In August, Mr. Musk told analysts that the Model 3s coming out of the factory were "not
engineering validation units."
"They're fully certified, fully DOT-approved, EPA-approved production cars," Mr. Musk
said, referring to the Department of Transportation and the Environmental Protection
Agency. "These are not prototypes in any way. They're not validation anything. They are
full production cars."
But he also said early versions coming out of Fremont would have issues, which
first cars were going to employees and investors who paid for them.
why the
Tesla has said it expects to begin delivering the first cars to nonemployees this quarter. It
will have to seriously boost production to meet Mr. Musk's 5,OOO-a-week projection.
Write to Tim Higgins at Tim.Higgins@WSJ.com
Appeared in the October 7, 2017, print edition as '.'
AA
Document received by the CA 1st District Court of Appeal.
One worker who spent time in the Model 3 shop-dubbed by some as Area 51 because of
the limited access and secretive nature-described watching young workers in September
struggling to move large pieces of steel to weld together instead of using robots as is
traditionally the case.
-
https://w ww .w sj .com/ artides/hehiml . ,tcslas . -production-delays--parts••Of.. modcl .. 3. . werc ..hcing . . made ..hy . .Jrnnd . . 1507321
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To:
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515Page 54 To:
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DECLARATION
OF
RANDEEP HOTHI
EXHIBIT
Document received by the CA 1st District Court of Appeal.
From: The Law Office of D GI Fax:
CASE No. RGDECLARATION OF RANDEEP HOTH!- EXHIIllT
AA653Page 55 To:
From: The Law Office of D GI Fax:
'
··Petitiorr"for Workplace Violence
Restrajnlng Orders
wv-I
II
I.
I
•
Fax: (510) 267-
Clerk sta~
s dtW, hero when for/n i's fif;d. ··
.
Read How Do l Gel an Order to Pri/hibit Workplace Violence (fonn
WV- l 00,INFO)before completing this fo1m. NOTE: Petitioner must
be an employer with standing to ~ring this adion under Code of
Civil Procedure section 527.8. Alsp fill out Confidential CLETS
Information (follTl CLETS-001) with as much information as you know.
FILED
ALAMEDA COUNTY .
-iiR 1-r2oi9 ·
Petitioner (Employer)
ERK OF THE SUPERIOR ~OURT
a. Name: Tesla, Inc.
is a· 1:8] corporation
f.
01/11/20211:13 PM
__,l·
For any of the incidents d~scribed above, did the police come? 1.8) Yes O No
I don't know
lfyes, did the employee or the respondent receive an Emergency Protective Order?
OYes 0No0 ldo_n'tknow
If yes, the order protects (~heck all rhat apply):
0 the employee
O the respondent
O one or more of the persons in@.
(Attach a copy ofthe order if you have one.)
Check the orders you l,lfant Ir!
r.;\ t8l Personal Conduct Orders
l ask the court to order the respondent not to do any of the following things to the employee or lo any person to
be protected listed in@ : ·
a.
Harass, intimidate, molest, attack, strike, stalk, threaten, assault (sexually or otherwise), hit, abuse, destroy
personal property of, or disturb tlie peace of the person,
·
b. (gJ Commit acts of unlawful violence on or make threats of violence to the person.
c. (gJ Follow or stalk the person during work hours or to or from the place of work.
d. (gJ Contact the person, eit,her directly or indirectly, by any means, including, but not limited to, in person, by
telephone, in writing, by public or private mail, by interoffice mail, by e-mail, by text mes~agc, by fax, or by
other electronic means.
e. (gJ Enter the person's workplace.
F. 0 Other (specify):
0 As stated in Attachment 9f.
The respondent will be orde~ed 110/ to take any action to get the addresses or locations of any p1·otected person
unless the courr jinds good cause not to make the order.
@ Stay-Away Order
a.. J ask the court to order the respondent lo stay at least
yards away from (check all that app(y):
(l) !8J The employee.
(8) (gJ The employee's vehicle.
(2) 1:81 The other persons listed in@.
(9)
121 Other (specify).AII places !hat Petitioner conducts its business, as
described in Attachment 8b(2).
(3) 1:81 The employee's workplace.
(4) 0 TI1e employee's home.
(5) D The employee's school.
(6) D The school of the employee's
children.
(7) D The place of chik.1 care of the employee's
children,
This is not a Cou~t Order.
Petition for Workplace Violence Restraining Orders
(Workplace Violence Prevention)
AA
WV-100, Page 5 of I
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ICase Number:
@ b. Ifthe court orders the respondent to stay away from all the places listed above, will he or she still be able to get
to his or her home, school, or job?
t8l Yes
0 Response is stated on Attachment IOb.
ONo
(If no, explain):
@ Guns or Other Firearms. and Ammunition
Does the respondent own or possess any guns or other firearms? 0 Yes
D No
t8] l don't know
If the judge grants aprorective order, the respondent will be prohibitedfrom owning, possessing, purchasing,
receiving, or attempting to purchase or receive a gun, other firearm, and ammunition while the protective order i,r
in e!fecl. The respondent will dlso be ordered to turn in to law enforcement, or sell to or store with a licensed gun
dealer, any guns or firearm.! wUhin his or her immediate possession or control.
@ [8J Temporary Restraining Order
.
Has the Respondent been told. that you were going to go to court to seek a TRO against him/her?
D Yes IE!No (![you answered no, explain why below):
D Reasons are stated in Attachment 12.
Respondent's course of conduct and behavior in stalking, harassing, and assaulting Petitioner's employees are such
Jhat great or irreparable hann: is likely to occur if immediate orders without notice are not issued.
@)
D Request for Less Than Five Days' Notice of Hearing
You must have your papers personally served 011 the respondellt at least five days before the hearing, unless the·
court orders a shorter time f~r service. (Form WV-200-INFO explains what is proof ofpersonal service. Form
WV-200, Proof orPersonal Service, may be used to show the court that the papers have been served.)
If you want there to be fewer than five days between service and the hearing, explain why:
D
Reasons are stated in Al1,_tchment l l
@ [8J No Fee for Filing ·
I ask that there be no filing fee because the respondent has threatened violence against the employee, or stalked
the employee, or acted or spoken in a manner that haftaccd the cmllir in reasonable fear of violence,
iittdtiit•i · ri•hHi•MJ
Ro~lsM Ja»uaf)' l,
Petition for Workplace Violence Restraining Orders
(Workplace Violence Prevention)
AA
WV-100, Page6of
•
Document received by the CA 1st District Court of Appeal.
I request ti1at a Temporary Restraining Order (TRO) be issued against the Respondent to last until the hearing. I am
presenting fonn WV -110, Temporary Restraining Order, for the court's signature together with this Petition,Page 61 From: The Law Office of D GI Fax:
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'l~C-as_e_N_u_;_bo_~_?_•_ _ _
@) D No Fee to Serve Orders
.
01/11/20211:13 PM
~
·
I ask the court to order the sheriff or marshal to serve the respondent with the others for free because this request
for orders is based on a credible threat of violence or stalking.
@D Court Costs
I ask the court to order the respondent to pay my court costs.
@ [gl Additional Orders Requested
I usk the court to mnke the following additional orders (.ipeci/y):
On April 22, 2019, Tesla will host an event at its headquarters at 3S00 Deer Creek Road, Palo Alto, during which
Tesla employees will be demo'nstratingvehiclc functionality in manufacturer-plated vehicles on nearby roads.
Respondent has expressed int6rcst in this event on Twitter, and his Twitter followers have encouraged him to try to
follow and interfere with these drives. Respondent is a vocal Tesla detractor, claims to be a Tesla short-seller, and
tweets extensively abouthis desire to see Tesla (and its Autopilot technology) fail. To ensure the safety of Tesla
employees and the public, terriporary protection is needed, on April 22, 2019 only, for any Tesla employee driving a
Tesla vehicle with manufacturer plates within 5 miles ofTesla's headquarters at 3500 Deer Creek Road, Palo Alto,
California. Respondent is well aware of what Tesla manufacturing license plates look like, as he has previously
posted a picture of one, and noted that it was a "company vehicle." See Declaration of Christine Leslie, Attachment
A.
issue an additional 50-yard stay away order from any Tcsl
@ Tesla therefore respectfully requests that the Courtof Tesla's
headquarters at 3500 Deer Creek Road, Palo Alto,
vehicle with manufacturer plates within 5 miles
California on April 22, 2019 only.
Number of pages attached to this form, if any:
_rl
bate: April 19,Zachary J. Alinder
Lcrwyer's name (if any)
l declare under penalty of pe,jury under the laws of the State of California that the information above and on
all attachments is true and co,rect.
Date: Af}riI_l 9, 20 I· Christine Leslie ,
Name ofpetitioner
Staff Global Security Investigator, Security
.. Title
libhHiMdi.jjjlt•Aitl
Petition for Workplace Violence Restraining Orders
(Workplace Violence Prevention)
AA
WV-100, Page 7 of
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0 Additional orders requested are stated in Attachment 17.Page 62 From: The Law Office of D GI Fax:
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ATTACHMENT 8b(2)
to Petition for Workpla~e Violence Restraining Order
Addresses of workplace:
(1) 45500 Fremont Boulevard
Fremont, CA
Document received by the CA 1st District Court of Appeal.
(2) 3500 Deer Creek Road
Palo Alto, CA
AA661Page 63 From: The Law Office of D GI Fax:
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PLAINTIFF/PETITIONER:
Tesla, Inc.
DEFENDANT/RESPONDENT: Randeep
Page: 56 of
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I
MC-
CASE NUM8ER:
Hothl
DECLARATION
(This form must be attached to another form or court paper before It can be filed In court.)
I, Christine Leslie, am the Staff Glbbal Security Investigator, Security, for Tesla, Inc.
·
All information stated in this declaration Is based upon my own personal knowledge, my review and oversight of work
done by others who report to me, and information obtained from other Tesla team members in the course of my
investigation as outlined below.
I declare under penalty of perjury under the laws or the State or California thal the foregoing Is true and correct
Date: April 19,
rkc~
Christine Leslie
(TYPE OR PR1NT NAME)
(SIGNATURE OF DECLARANT)
Foi1'/\ Approved ror Qp11onu1 Use
Judicl3! Cmmcil ol camom1a
MC,031 [Rev.Jut11, 200S)
Attorney for
Respondent
ATTACHED DECLARATION
AA
O Plaintiff
i:;;;J Petitioner
O Defendant
Arrwrcar1 Li!QlllNot, ll'lt.
www.USco11nForrn!f.com
Page 1of
D Other (Specify):
Document received by the CA 1st District Court of Appeal.
I have personally conducted an investigation into the threats made by the driver of a white Acura TL against Tesla
employees Matt Cross, Robert Temmerman, and James McDonald while they were attempting to film the Navigate on
Autopilot feature while driving a Tesla Model 3 on April 16, 2019, The summary attached hereto as Attachment A
explains how Testa was able to identify the individual stalking and harassing the above Tesla employees as Respondent
Randeep Hothi.Page 64 From: The Law Office of D GI Fax:
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Attachment A to Christine Leslie Declaration
• On Twitter, the ttser with the@skabooshka handle identifies as part of a community of
Tesla short-sellers and frequently tweets with the hashtag "$TSLAQ," which is used
on line to indicate,the poster's hope or purported belief that Tesla will fail as a company.
As reported in the L.A. Times, the goal of the $TSLAQ movement is to see Tesla fail
https ://www.latimes.com/b usiness/au tos/la-fi-h y-tesla-short-se Ilers-m usk-20 I 90408sto1y. htm I.
• In spring 2018, the@skabooshka handle began regularly posting photos and video of the
Tesla Fremont factory employee parking lots and logistics lots. These locations are not
open to the public.
• Tesla discovered that the Twitter account was used by one of two Fremont-based
brothers, Gagan and Randeep Singh Hothi, based on internet research and public record
searches and Tesla security infrastructure, including security cameras on the premises.
o Gagan and Randeep's last address of record is Fremont with their father,
Kalvinder; Singh Hothi. Public records indicate the three men live within less than
3 miles of the Tesla Fremont factory.
• In August 2018 an Ario portable camera was found by Tesla Security Personnel mounted
on a utility pole at the private property of the Tesla Fremont factory, pointed at Tesla
private prope1ty. An Ario customer service representative provided the registered name,
Skabooshka, and email skabooshka@protonmail.com, for the camera in question.
• Jn January 2019, a Cam Pak Hunting Trail portable camera was discovered inside a utility
box at a private parking lot at the Tesla Fremont factory, pointing in the same general
direction as the aforementioned Ario camera. The camera was examined, photographed,
and left in place, and Tesla security cameras were adjusted to observe the location.
o At l 0:37 pm on January 3, 2019, a white Acura entered the Tesla factory parking
lot, CA license plate_, parking with headlights illuminating the utility box
containing the camera. A tall, bearded male with long hair exited the vehicle,
removed the known device as well as another, moved them bath several times, ,
finally collecting them both and departing.
o California DMV records indicate the registered owner of the Acura is Kalvinder
Singh of Fremont, father and co-habitant of Gagan and Randcep Hothi.
o As described in a subsequent police report, Kalvinder identified his son Randecp
as the primary user of the identified vehicle.
2. · Ran deep Hothi 1hits a Tesla employee with his car after he is caught trespassing.
• On Thursday, February 21, 2019 at approximately 2: 11 pm, the aforementioned white
Acura was again seen at Tesla's Fremont factory, and two Tesla security officers,
including Tyler James, were dispatched todelivera verbal notice of trespass .
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1.' Randcep Hothi's history of trespassing on Tesla's property and Tweeting about it.Page 65 To:
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• At 2:22 pm, Mr. James, in uniform, approached the vehicle in the employee parking lot
and tapped on the:driver side window.
• The driver, later identified as Randcep Hothi by Fremont police, made eye contact with
the Tesla security officer, refused to roll down the window, and drove his car quickly and
recklessly out oft_he parking spot, striking Mr. James as he sped out of the parking lot.
• The Tesla employees followed him out of the lot and delivered the verbal notice of
trespass while the Acura was stopped at a stop sign in traffic on the private access road
. adjacent to the Tesla Fremont factory. Randeep did not roll down his window and did
not cooperate with security personnel, and drove off as soon as traffic cleared.
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• Tesla reported the matter to the police. On 2/27/2019, the Fremont Police Department
confi1111ed that R~ndeep Hothi was the driver of the vehicle involved in the 2/21 incident
Following their investigation, the Fremont Police Depa1tment has prepared a formal No
Trespassing order to Randeep Hothi and has attempted to deliver it to him. The police
have informed Ti:sla that effo1ts to deliver the No Trespassing order have been
unsuccessful because Randeep has either ignored or refused the request of Fremont police
officers to meet.
3. · Randeep Hothi :endangers a crew of Tesla employees driving on public roads.
,
On 4/16/2019, a crew of Tesla employees was driving on Highway 880 in a Model vehicle with manufacturers' license plates and externally mounted camera equipment.
The crew-comr1rised of Matt Cross, Robert Temmerman, and James McDonald-was
taking video to demonstrate the capabilities of Tesla's Autopilot and Navigate on
Autopilot featmes, which can semi-autonomously drive the vehicle on the highway (with
human supervision) by steering, braking and accelerating, and changing lanes, among
other things.
• During the drive, the crew observed a white Acurn TL driving unsafely and erratically,
following them ~nd approaching the vehicle from all sides, and taking photos. While on
the freeway operating at speed, the vehicle would move very close to the Tesla.vehicle
and at times swerve toward the Tesla's lane, at one point triggering the vehicle's sidecollision (crash) avoidance system. At another point, the Tesla vehicle had slowed down
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• The @skabooshka Twitter account corrobo1'ates the team's account of events, and
reinforces the connection between the@skabooshka account, the Acura TL, and Randeep
Hothi.
.
• In particula1-, on Apl'il I6 and April 18, the@Skabooshka account began tweeting photos
of a Tesla photography crew driving on 880 in a Tesla vehicle with manufacturer plates.
The tweets included pictures and detailed the entire route of the car and crew.
88888-8\
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Document received by the CA 1st District Court of Appeal.
in preparation of the toll booth ahead. The white Acura TL was in the left lane behind the
Tesla. vehicle, but was approaching very fast. When the white Acura TL realized that the
Tesla vehicle was slowing down, the driver attempted to merge right behind the Tesla
vehicle but had to then rapidly brake, otherwise it would have driven past the Tesla
vehicle_ at his spei:d. The Tesla crew felt this was a very dangerous and threatening
maneuver.
• The video crew had no previous knowledge ofthe@skabooshka/Randeep 1-lothi case, but
were so concerned with the behavior that they decided to call the police.
• The crew was able to take a photo of the car, which was the same white Acura TL
described above that is known to be driven by Randeep Hothi. Aller being shown a
photo ofRandecp Hothi, two of the crew members confirmed they believed that Randecp
1-lothi was the driver of the white Acura TL on the day they were followed and harassed.Page 68 From: The Law Office of D GI Fax:
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• As shown by the below screenshots, the @skabooshka account began tweeting about the
drive at I :29 PM PDT, and the team raised their concerns at about 11 :30 AM PDT. He
then followed up with additional tweets on April 18, 2019:
a, skabooshka
•
@!;1i;,1bQo~Jika
is
Tesla currently conducting its
autoRilot / FSD demo recording
northpound on 1-880, usi[)g a red d_ual
motor Model 3, w/ two backseat •
came:ramen and trunk-mounted gopro.
Vehicle entered 1-880 near Fremont at
1PM • ,:i,;,''"
c,) "
\l
n "'
v "'
r:
!\':cot )'Wr roply
··,,,tiH:'!
skaboo&hka tjiskaboo:;h~;i 10h
•
v
The vehicle traveled 0p:)1ox!mately 35 miles f1om t:00PM 10 1:40PM, entered I·
860N 1n flrermmVUnion City, condwc1ed trivial lnne change, (mer9ii;9 from
!cttmosHono inlo right jano and Dack), and conclwdod its "automous~ drivo at
the Treasure Island oxit on tho Bay 8ridgo.
. ,Watn
uanv111e
San f1umon
Pl
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skabooshka @Skabooshkn · 1Oh
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v
The demo conv~nlernly bypassed the to!! booth, by using lanes compatible with
the "FasTra.k" transponder.
-
Note that the vehicle dtd not \and most assuredly does not have the capability
to) follow trafficilaws. Bay 8ridga entrance speed limit is 25 MPH, The vehicle
drove at 45 MPH
n,
Q "
l'J
skobooshko
°WS~U)l(.lOst\ko
Photogr;aphs: '.; \ : ", recording the
"autonomous driving" demo for its socalled "Autonomy Investor Day" (Apr
22).
Mounted, two cameras: one rear,facing
on the trunk, one inside directed
towards the steering and center
console'.
Note thil license plate: MFG632779S. a
compariy vehicle
I
I
'il:tl:IAM· 1nAr11?i)tll
o The behavior of the Acura driver, as recounted by the crew, is also consistent with ·
@skabooshka's apparent obsession, as documented on Twitter, with testing-and
disputing - the capabilities of Autopilot.
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4. Randeep Hothi Should Be Restrained from Interfering With Tesla's Upcoming
Autonomy Inves'tor Day on April 22 nd in Palo Alto
~ ;kaboushku (!-~~-ii,v11ohko A11r Hi
!
'W
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r
' - -.. -"'"·v
i,i!a ii t\lff~n!I)' C0111'.l!J
1,81)0, UW'l9 ll md d\1,il motN McOel J ,,.,, l\'/0 o~,~!ea1\'.JMHanloll ;m;j tf\111~·
mo11-1;e::J gopro, Ve!1id-, <,nW~~ l•fYMl n"ar frenicm .i! ~PM Si';!/;
(.l.~q
Ut1i,
()m
f~
• ~l~~,:~k:J:iptic
You sure it isn't a Model Y? It's hard to tell
them apart.
You should help with the testing. Brake in
front of the car, swerve into its lane, etc. Just
to make sure it's a realist FSD test
$TSLA $TSLAQ
Q;,
u
88888-8\
AA
-·-·-··-·
Document received by the CA 1st District Court of Appeal.
• From the @skabooshka Twitter account, it appears that Randeep Hothi has a particular
interest in Tesla's, upcoming Autonomy Investor Day, which will take place this coming
Monday, April 22 at Tesla's headquarters at 3500 Deer Creek Road, Palo Alto,
California. See h!tps:l/twittcr.comlskabooshka/status/11189380283852636 I7. For this
event, Tesla will host investors for presentations about its self-driving technology and
roadmap, and investors will be able to take test-drives to experience Autopilot firsthand,
including features and functionality that are under active development (and which are not
publicly known or available). These vehicles will be on the roads near and around
Tesla's headquarters, and will bear manufacturers' license plates,just like the vehicle that
Randeep Hothi to,llowed on 4117119.
• After his posts about the 4/17/19 drive, Randeep's followers applauded him and sent him
tweets both encouraging him to follow Tesla's cars at the investor event, and to try to
sabotage Tesla's vehicles on the road. Examples are below:Page 71 From: The Law Office of D GI Fax:
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sk,1br,10,hka (i::.kaboMhk,; · ?1h ·
01/11/20211:13 PM
I
v
! As t'lith all thi11gt Tesla. partin1!arly with regard to its appare111 technol09ics1!
prowes~. lhe ·Autonomy l!wt!stor Daf >vii! be mura1€!dwith false pcornim,
rnisleading·svgg,W10ns. ~nd lures to credulity,
I)
U IO
El
t! '"
V
f:V
It wi.11 be funny if it crashed.
11:20 AM · 1$ Apr 21)
n
fl
• . $kAbQoshkA @s~alJooshka • Apr lG
v
•
T1;;.sl,;1 fa (Urrnntly
l-880, using a red dual motor Modi!l 3. w/ two backseat CJ!)it:ramen and tru1~krnol1nt~d gopro. Veh1de entered l-880 Mat Fremont st 1PM. ~TSLA
()
Q
El
3)
Corey
. follow
@rr;ider¼i
V
Driv,e along with it and create random events
for it to react to
2:02PM '.16Apr2'!)J
() .l
n
' " " Mort,;m Lund @nicrtera!und.S9 • i\::,1· ' " ' : Replyint'.) lo gitpiltr5 l. @~kcbr:,oshkil
Worth hav]n9 in rnind.
@TBslil
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MC-CASE NUMBER:
PLAINTIFF/PETITIONER: Tesla, Inc.
DEFENDANT/RESPONDENT: Randeep Hothi
DECLARATION
(This form must be al/ached to another form or courl poper be/on, it can be filed In court)
I, Tyler James, am a Senior Protection Specialist for Tesla, Inc,
All information stated in this de9laration is based upon my own personal knowledge, unless stated on information and
belief, and if stated on information and belief, I believe those things to be true.
I declare under penalty of perjury 1mder lhe laws of the State of California that the foregoing is true and cermet.
Date April 19,
Tyler James
(D'PE OR PR!IH NAME)
0 Attorney for O · ainliff O Petitioner O Defendanl
D Respondenl i:,,J Other ($pacify).· Wilness
F?'ffl A~1av1Jd /Qr ('.)pll(lMI Vso
Jw:!1e1111 cw~til Qf C1MMHll
MC·031 (11:~v. J,;ly 1, 2005)
ATTACHED DECLARATION
AA
AiJ'Wle•n l~o•INct, tne,
www.USCourtFonm.com
Page1 of
Document received by the CA 1st District Court of Appeal.
On Thursday, February 21st 2Q19 at approximately 2:11 pm, Iwas asked to respond to a BOLO hit near the South
pal1
and noted its license plate number. I followed the Acura In my company patrol vehicle at a reasonable distance,
Eventually I parked two parking spots to the West of the While Acura, My colleague who was with me at the time ·
directed that we would approach the White Acura and make contact. Because I was wearing a uniform that identified me
as a Tesla security officer, I wo,uld be the contact officer and he would be the co·ver officer to obtain photographs, We
approached the Vehicle at 2:22 pm. The driver made eye contact with me and would not roll down his windows to
communicate. He then at a fast rate of speed exited the parking stall and the drivers' side of his vehicle made contact
with my left knee as he drove out of the slalLPage 73 From: The Law Office of D GI Fax:
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01/11/20211:13 PM
MC-
CASE NUMBER:
PLAINTIFF/PETITIONER: Tesla, Inc.
DEFENDANT/RESPONDENT:
Page: 66 of
Randeep Hothi
DECLARATION
(This fonn must be attached to another form or court paper before it can be filed in court.) ·
I, Matt Cross, am a Senior Content Producer for Tesla, Inc.
All information stated in this declaration is based upon my own personal knowledge, unless stated on information and
belief, and if stated on information and belief, I believe those things to be true.
On April 16, 2019, my colleagues Robert Temmerman, James McDonald and I were in a Tesla Model 3 to film its
Navigate on Autopilot feature. •
We were driving northbound on I-~B0 around 11 :30 a.m. and had been driving for approximately 5 minutes near the Auto
Mall Parkway when Rob noticed a!white Acura TL on our right side approaching us from behind
We saw that the male driver was observing us and our car, and he started taking photos and videos on his phone. He
stayed near us for about 10 minutes, maneuvering around our car.
The driver stayed within visual contact with our car for the rest of our drive to Treasure Island.
As we approached the toll plaza to the Bay Bridge, the Model 3 slowed down to 35mph. The Acura TL had been 100 ft
behlnti us on the left, and the driver swerved into our lane, braked abruptly, and came up very close behind us as we
slowed down.
We proceeded to Treasure Island, but the driver continued to follow us off the freeway, at which point I called the San
Francisco Police Department. We then drove around making random turns to see if he was still going to follow us. He
did. As we circled around Treasurii Island talking to the police, he turned off on a different road. I was told that there
were no officers on Treasure Island, and therefore no officers would be able to arrive within the next 30 minutes. Since
the dr_iver was no longer following us, we decided to start drivi_ng back and told the police officer not to send anybody.
The driver had been following us for at least 35 minutes. His erratic and dangerous conduct cause me to fear for my
which is why I called the police.
safety and for the personal safety of Rob and James,
personal
.
..
'
I. declare under penally of perjury under the laws of the State of California that the foregoing is true and correct
Date: April 19,
Malt Cross
(S1GNAnJRE OF DECU.RANT)
(TYPE OR PRINT NAM~)
D Attorney for D Plaintiff D Petitioner D Defendant
D Respondent 18] Other (Specify): Witness
Ferm /\pprovo(l lor Opiiori111 uae
J1idici1'll Cm11'1Cil of f:.1J'ifornio
ATTACHED DECLARATION
Amurkan L~gijlN:11t, Inc,
www.U$CourtForma.com
MC,031 [fiov, July 1. 2005]
AA
Page 1of
Document received by the CA 1st District Court of Appeal.
We were in the far left lane, and he was in the lane next to us on lhe right. He then started swerving out of his lane
towards us. This happened twice, and he swerved close enough to trigger the Model J's side-collision avoidance feature.Page 74 From: The Law Office of D GI Fax:
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MC-PLAINTIFF/PETITIONER
DEFENDANT/RESPONDENT:
CASE NUMBER:
Tesla, 111c.
Randeep Hoth
DECLARATION
(This /om, must be attached to another fom, or court paper before it can be fifed in court)
I, Robert Temmerman, am an Associate Content Producer, Design & Styling, for Tesla, Inc.
All information stated in this declaration is based upon my own personal knowledge, unless stated on information and
belief, and if stated on information and belief, I believe those things to be true.
On April 16, 2019, I was driving a Tesla Model 3 with my colleagues Matt Cross and James McDonald in the backseat to
film the Navigate on Autopilot feat,ure.
Towards the end of the drive, we lost sight of the Acura TL for a few minutes However, as we drove onto the on-ramp
leading to the Bay Bridge and wete rounding a slighly curved corner, I saw the driver reappear at a high speed. He
switched lanes from the right lane adjacent to ours into our lane. Because the car's Autopilot had slowed us down to mph ir about 4 seconds, the only way I was able to avoid a collision was to disengage Autopilot and accelarate rapidly.
This is when Matt decided to call the police, as we were all fearful for our personal safety and the driver of the Acura TL
appeared to be either stalkin~ or harassing us.
I declare under penalty of perjury under lhe laws of the State of California that the foregoing is true and correct.
Date: April 19,
Robert Temmerman
(TYPE OR PRINT NAME)
D Atlorney for D Plaintiff D Petitioner D Defendant
D Respondent 181 Other (Specify): Witness
form Approved !or op11ona! use
Judicial Coimr.i\ of CJilfornle
MC-031 {Ruv J1,1ly t, 200$)
ATTACHED DECLARATION
AA
Arnttrlc:irn L~ga!Ntd, Inc.
www.USCotirtForms,com
Page
Document received by the CA 1st District Court of Appeal.
When we came into contact with the white Acura TL referenced in Matt's declaration, I was able to tell that the driver
imm~diately recognized that we were filming. The driver pulled out his phone to record us, and when doing so, began to
merge into our lane directly para11b1 to our car. Because the Acura TL continued to come within 12 to 18 inches of our
vehicle, the car's Autopilot feature: repeatedly caused the car to move over in the lane to avoid a side collision: The
driver eventually drove around all four sides of the car, presumably to test the car's various features.Page 75 To:
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•
PlAINTlfFIPETITIONER: Tesla, lrjc
DEFENDANT/RESPONDENT: RandeeI'l
Page: 68 of
01/11/20211:13 PM
MC,
CASE NUMBER:
Hothi
DECLARATION
(This form must be attached to another form or court paper before it can be filed in court.)
I, James McDonald, am a video editor for Tesla, Inc.
•
All information stated in this declaration is based upon my own personal knowledge, unless stated on information and
belief, and if stated on information'and belief, I believe those things to be true.
I declare under penally of perjury undilr the laws of the Slate of California that the foregoing is true and correct.
Date: April
19,
James McDonald
(TYPE OR PRINT NAME)
D Attorney for D Plaintiff D Petitioner D Defendant
D Respondent (2:1 Other (Specify): Witness
Form Approved tor Op11011,1 uie
Judicial CQurcil or Cali!omia
ATTACHED DECLARATION
Amerlcim LIIQJIIN,t, !M,
www,USC011rtForm11.com
MC-031 !Fl'JV )l,liy U
AA
Page1 of
Document received by the CA 1st District Court of Appeal.
I have reviewed the Declarations c1f Matt Cross and Robert Temmerman and agree with their accounts of the events on ·
April 16, 2019. The erratic and d~ngerous actions of the driver of the white Acura TL caused me to fear for my personal
safety and for the safety of my colleagues.Page 76 To:
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DECLARATION
OF
RANDEEP HOTHI
EXHIBIT
Document received by the CA 1st District Court of Appeal.
From: The Law Office of D GI Fax:
CASE No. RGDECLARATION OF RANDEEP HOTH!- EXHIIllT
AA675Page 77 To:
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$upjjlerrmnt N.o
Incident Report
FREMONT POLICE DEPARTMENT
ORIG
·!{epOrt
2000 Stevenson Blvd
02/27/Rpvlncl•••Hyp
Fremont, California
Moo,.l'.rer#
OESTEFl\NO,JOSEl?H R!Cl:IA
Phofle Number
(.510) 790~Fax Nl,l'inber
POLICE OEPARTME.NT
Staius
RPl/lncldeni Typ
REPORT 'lJO FOLLOW
j MISC l?tlBLIC SERVICE
'i..Otaliort
! Ctty
45500 FMMONT BL
?r~~~-- . :tt;'~
-r;rc•··
· Fremont
r~,t~r~~/~l/
~";~; I ~~/":n/
j
~~l•~·u
AH!g:nment
14818/0llS!r!IS"ANO, JOSIU'll RICHARD
Swing Shift, A Team, Zone ~xwmv41\1' Ofh~f
l Apl}f'ova1 Date
I 02/28/2502
S1'119rtd, By
RMS nanlt"t
Prop 'trans Stnt '"""""""""'" "Approved By
Successful
Successful
NJprov• Tlmt
18:59:
Bod'f . Wca1 b.i:wm:1ri.
Yes
lnvl
N;mme
PER
SINGH 1 KALVINOER
MNI
I
The purpose of this report is to document follow up investigation regarding a disturbance that occurred on
02/21/19 atTesla.
EXHIBIT A· p. I PrinledAI
Report Offit.:,-0,
14818/PE.~.Tl>FANO, JOSEPH .R!CSARD
·""l?!ill)rll
, 05/07/2019 15:
1 of .:
AA
Document received by the CA 1st District Court of Appeal.
Marnb-enl'fPage 78 To:
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!iome
01/11/20211:13 PM
Incident Report
FREMONT POLICE DEPARTMENT
Typu
Page: 71 of
Slill'Pi•r-..tl'l_Hti
Oil.IG
I Acld!'O&!i
Onie
lty
02/~7/OLS
f TYf1e
Document received by the CA 1st District Court of Appeal.
California
OperatorLioense/IO
Cify
I !DNo
j ~Morie -fyp0: 1 POOnt'; No
: :
Notification:
On 02/27/19, at about 1300 hours, I was cont.acled by Officer Kerner and he requested I foUoW up in regards to a
call for service he had. Officer Kerner was going to be off work for an extended period of time.
Officer Kerner provided me the following details:
On 02121119, a! about 1538 hours, Officer Kerner was dispatched to Tesla located at the 45000 block of Fremont
Bl for a report of a disturbance. .Officer Kerner spoke with Tesla Security Officer Tyler James who advice he was
speaking with an individual who was not supposed lo be on Tesla property. I later identified !he individual as
. He was parked in a
Randeep Holhi. Randeep was drlving a while Acura TL bearing CA license pli:lte
parking stall. James approached Randeep lo tell him to leave. As James approached the vehicle, Randeep drove
away at a slow rate of speed, Randeep's vehlcie struck James' knee.
Officer Kerner reviewed !he video from Tesla security cameras and advised ii did not appear lo be an Intention.al
act. James al:50 did not believe the driver of the vehicle intended to hit him with his .vehicle. James did not have
any injuries, Officer Kerner acMsed. James the action did not appear intentional and 11 occurred on pri11ate
property. Officer Kerner provided James an incident history number. Tesla Security later fon,varded James photos
of Randeep .and requested contact be made With Randeep.
Due to Officer Kerner being away from work, he requested I attempt to identify Randeep, obtain insurance
information, and his statement.
Kalvinder Singh's Statement:
A records check. of the white 2012 Acura Tl shows the registered owner to be Kalvh;der Singh. I drove to his listed
.
! Prlnted./\l
Re·pt)rt OffleEf
14818/DE!ll'EFANO, JOSE.l?H RICHARD
I
AA
05/07 /.2019 15: .
.
EXHIBIT A - p.
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Incident Report
Supplemenl No
ORIG
FREMONT POLICE DEPARTMENT
address at.
Potawatami Dr. I contacted Kalvinder and he tol me the
summary:
Kalvinder aa,vIsEia he is the registered owner of the vehicle, but his son Randeep Hothi drives the vehicle. l
showed Kalvinder the picture provided from Tesla Security. Kalvinder advised that is his son Randeep. Ka!vinder
son. is a college student at the University of Michigan and he studies Philosophy. Kalvinder advised
advised
not home, but provided me his cell phone number.
was
Re,r,rt<>sm
) which covers his Acuna TL.
Kalvinder advised he has PM insurance (Polfcy #
Randeep Hothi's Statement;
I called Randeep and I left him a voit:email asking him to re1urn my phone call. Randeep relumed my phone call
and told me the following in summary:
I asked Randeep to fell me what happened when he was parked on Tesla's property. Randeep told me he was
Randeep did not
sleeping in h.isvehicle al Tesla when he was approached by someone who told him ta
was
individt1al
the
know
not
did
he
stated
Randeep
Security.
Tesla
was
it
know who it .was. I told Randeep
security and the individual wa.s not clearly marked security vehicle.
Document received by the CA 1st District Court of Appeal.
I asked Randeep if we could meet in person and he .stated he was not currently in Fremont.
Randeep said he immediately . the parking lot Randeep was unaware that he hit anything.. I advised Randeep
!he security officer claimed he was hitwith Randeep's vehicle. Randeep was unaware and did not believe he hit
anylhing. Randeep stated there was no damage la his vehicle and e did not intentionally hit the security guard
with his vehicle.
Randeep was unable to specifically explain why he picked Tesla's parking lot to take a nap. Randeep stated it was
just a random parking lot he found.
Body Camera;
My Watch Guard body camera was activated for the .above listed .statements and I later uploaded ihe recordings
toWatch Guard.
Record Checks.:
Randeep was clear any wants/probation. I conducted an RMS check and Randeep was previously listed as a
victim in a battery and a driver in a traffic c.ollision. I searched Randeep's criminal history. Randeep had no prior
arrests.
Disposition:
I advised Officer Kerner of the above. He.will follow up With
The purpose
Security.
this report is for documentation purposes only.
EXHIBIT A - p.
1~•N
--
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Pagirl 3 of
AA678Page 80 To:
From: The Law Office of D GI Fax:
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Incident Report
FREMONT POLICE DEPARTMENT
S:vµpl.emeritNo
Rep1'rt{l\l Oate
2000 Stevenson Blvd.
03/15/RpL~nekje:m! Typ
Frsimont, California
Miimt;m'#
KERNER,MATTHEW JOHN
Pnt:ine Numhex
(510) 790-F.ax Number
Na
POLICE DEPARTMENT
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TO FOLLOW
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A Team,
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Successful
rpose o this supplemental report is to document my actions in taking Tyler James' statements. Court
Liaison $gt Decker also presented this case to the District Attorney's Office. The DA's Office declined lo
prosecute any crimes regarding this matter.
See narrative
details,
No further action taken, case _closecl.
. PRN
i
No
3l0fll
Narrative
·
Successful I
·
Notification
Document received by the CA 1st District Court of Appeal.
....c.c..~~------
On 0212112019 I, Ofc. Kerner #14792,.was dlspatchecl toTesla, located at 45500 Fremont Blvd, regarding a
subject, later Identified as Randeep Hothi, who was not supposed to be on the property. Dispatch advised the
reporting party, Tyler James, called FPO to report that Hoth! was on their property and he was not supposed to be
there. James contacted Hothi and asked him to leave. When he did leave, Hothi nicked James with his vehicle.
James told dispatch he did not know· if Hothi realized ·he hit James, and did not know·ifhe did it intentionally,
~il!tem@nt ffi frnm Tyler James
I responded to the security office and spoke with James, who in essence, told me the following: James was
working security at Tesla when Hothi came on .the property and was not supposed to.be there. James .stated he
went up to contact Hothi at his driver's side window as he was parked in a parking stall to verify that .he was not an
employee and not supposed lo be on the property, As James was attempting to talk lo Hoth! at his driver'$ side
R@pPn VTd?Ct
14792/KERNER,MATTHEW JOHN"
.
AA
EXHIBIT 3 - p.Page 81 From: The Law Office of D GI Fax:
To:
Fax: (510) 267-
Incident Report
FREMONT POLICE DEPARTMENT
Page: 74 of
01/11/20211:13 PM
$upple1t1fJ:l'lt N?
Narrative
window, Hot.hi drove forward out.of.the parking stall that he was backed into and bumped into James' knee as he
was leaving the parking stall. James did say he got bumped into by Hothi's vehicle 011 the way ou1 ofthe parking
stall because it was an angled stall and he did tum lo exit the stalL I asked James if he was injured arid he told me
his knee was starting .lo "flare" up a lillle bit bu! as far as he knew, he had no visible injuries Or bruising. Jarnes
said other secudty officers attempted to drive up fo Hothl to tell him lo stop but he did not stop.. James 1old me he
did have video footage on his work phone l could look at; however, he was not ablei to show me the footage from
lheir security cameras on site. I watched .the video on James' work cellphone and I was unable lo see much ofthe
incident I did .see Hoth! in the vehicle, but I was unable to see anything further to solidify James' statement,
l concluded my interview of James and gave him a business card with the incident history number on ii.
Statement #2 from Tyler James
On 03/15/2019, I look another statement from James due to him saying he has further information, 111 essence, he
told me the following: On 02/21/2019, at approximately 1411 hours, Tesla security got a hit on their license plate
Disposition:
Document received by the CA 1st District Court of Appeal.
readers that there was a vehicle in the lot that was notsupposed to be on the .property, James responded to the
area and saw Hoth.i driving his White Acura TL from the south lot of the factory into the factory lot on the property,
Ho!hi backed his vehicle into a parking stall and parked there, ,James exiled his unmarked Tesla security vehicle
from two stalls away while wearing a marked Tesla security uniform, James approached Hothi while he.was
sea.ted in his vehicle in the driver's seat James walked up to the vehicle and tapped on the .driver's. side window
and asked H0!hi to roll down the window, James said Hothi made eye contact with him, As James asked him to
roll down his window, Hothi began to move around li.ke he was looking for something, After doing so, Hothl drove
forward out of the parking stall. As. Hothi drove forward out of the parking stall, the driver's side door oflhevehicle
struck James' left knee, James told me during this interview that the parking stalls are straight and not angled,
James stated that he did not know If Hothi intentionally hit him as he did not know his mindset. James $aid
secmity officers in marked Tesla security 1.mi!orrns attempted to stop Hothi, but were not successful. James did
not elaborate on whatthey did to try and stop him, After seeing a Doctor, James $aid the injurie$ to his knee was
soft tissue damage, He stated he could see that his lsft knee was more swollen than the right knee, James also
said there were no cuts, scrapes, or visible injuries,
I reviewed the case and video with Sgt Miskella, Lt Tang, and FPD Traffic personnel and. all agreed that it did not
meet the elements of a hit and run,
On 04102119,. Court Liaison Sgt.. Decker presented this case to the District Attorney's Office to determine .if
charges of hit and run were applicable. I provided Sgt Decker with all reports, the CAD printout from the delail
(including notes from the Dispatcher who took the call), and lhe video provided from Tesla Security,
It should be noted that the Dispatcher/Call-Taker noted the followi11g as they spoke with the RIP:
"RP IS WITH .SECURITY • HE WAS ASKING A SUBJ, WHO NOT SUPPOSED TO BE ON THE CAMPUS, TO
LEAVE AND, AS THE SUBJ WAS DOING SO, THEY NICKED THE RP WITH THEIR VEHICLE, WHILE HE WAS
ON FOOT, UNKJF THE DRIVER REALIZED THEY HITTHE RP AND UNK .IF THEY DID IT INTENTIONALLY,
RP DIDN'T SEEM TO THINK SO, BUT WANTS A RPT FOR A HIT AND RUN"
After reviewing these documents and video, the DA's Office declined to prosecute any crimes involving this
incident
No further action taken, case closed,
EXHIBIT A - p.
_lll,:fe 2 .of .
·--------------.,..- -------·---------"'
AA680Page 82 To:
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Incident Report
$uppr'~roent No:
(l00.
FREMONT POLICE DEPARTMENT
Reported Dar@
2000 Stevenson Blvd
04/10/RPt/lncldenl ryp
Fremortt, California
MMnber#
DES'l'E!!'ANO,JOSEPH R!CHA
Pf1cm; Number
(510)790-
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REPORT 'l'O FOLLOW
cidenttyp
MISC PUBLIC SE!l:ii'ICE
j City
45500 FREMONT BL
·sn1urCa By
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Approved By
Approvlos fficer
12636 12ti
. Fremont
Approval Oate
________ 04/10/
Appr6:vrit Timi$
22:36:
Summa
Narratbte
Document received by the CA 1st District Court of Appeal.
l•~a.Uon
The purpose of this report is to document an attempt to issue Randeep Hothi a warning notice o.f trepass from all
Tesla Properties.
On 04103119, at about 1523 hours, I arrived al Randeep Hothi house on
in an al!empt to give
Randeep a warning Mtice of trespass from (311 Tesla Properties, There was no answer at the front door, I called
Randeep two limes on his cell phone and he did not answer. I !hen called Randeep's father (Kalvinder Singh} who
advised he was almost home, Ka.lvinder told me his son was not home and he did not know when he would return
home, Kalvinder !old me he would call me.when his son got home,
At about 1649 hours, I .called Kalvinder two more !Imes and he did not answer any of my calls. At about .hours, t called Kalvinder and spoke to him ..KaMnder told me his son was an adult and he was nothome. I
explained lo. Kalvinder I was jus! trying to give Randeep a document to close out this case, Kalvinder .got upset
with me and told me he was going to complain to the Chief of Police. I explained to Kalvlnder I was just trying to
close this case out and neither he or Randeep were in any trouble,
On 04/08/19, at about 2050 hours, I called Randeep and there was no answer. I left him another voicemail asking
him to call me back.
On 04/09/19, at about 0046 hours, Randeep returned my phone call, but I did notanswer. Al about 1243 hours, I
called Randeep back and he did not answer, Al about 2031 hours, Ral'ldeep called me. I spoke !aRandeep and
he told me he moved out of the area. and he did not want to meet with me. I explained to Randeep !hat l ju$!
wanted to issue him a trespass warning and he was not in any trouble'. Randeep stated he did not w<1nt to sign it
and he was in San Francisco. I asked Randeep if he would be willing to n1eet With meet on 04/10/19 or 04/11/19.
Randeep told me he was out of the area arid he would have to think about It
I was unable issue Randeep a warning notice of trespass.
EXHIBIT A - p. , -Re-pM Ori:ltttf
1::.4c.:8:..:1:.:8.:c/;:;..DE=c.SccTc.:E;..;;.F.c..AN=.c·.c.O.:..,Jc..Oc.cSc.cE;.;:l?_H_R_I_C_HARD
_ _ _ _ _ _ _-·~··~·"··-···--~~0-5~/-0_7'-/_20_1_9_1_5_:_28_ _ _-;
IJ'!9:e
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DECLARATION
OF
RANDEEP HOTHI
EXHIBIT
Document received by the CA 1st District Court of Appeal.
From: The Law Office of D GI Fax:
CASE No. RGDECLARATION OF RANDEEP HOTH!- EXHIIllT
AA682Page 84 From: The Law Office of D GI Fax:
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May 23,
The Honorable Jeffrey S. Brand
Department Alameda Superior Court
Hayward Hall of Justice
24405 Amador Street
Hayward, CA
Tesla, Inc. v. Hothi, RG19015770 (the "Case")
Letter Brief Re Discovery
Your Honor:
I am the attorney for Respondent Randeep Hothi. Pursuant to your
instructions at our bench conference on Tuesday, I submit this letter brief in
support of Hothi's request to propound discovery in this Case.
PROCEDURAL HISTORY
Petitioner, Tesla, Inc. filed this action on April 19, 2019. On an unnoticed ex
parte petition, the Court issued a temporary restraining order against
Randeep Hothi and set a hearing on the restraining order for May 7, 2019.
Hothi, on May l, 2019, filed a Request to Continue Hearing which included
a request that the Court schedule a long-form evidentiary hearing with
allowance of sufficient time for limited discovery. Judge Patrick R. McKinney
granted the requested continuance, re-calendaring the hearing for May
21, 2019. Although the continuance was requested for good cause, Judge
McKinney based the continuance on the right of a respondent to obtain
one continuance as a matter of right. 1 Regarding discovery the Court
ordered:
At the May 21, 2019, I incorrectly stated that Your Honor had issued that Order.
AA
Document received by the CA 1st District Court of Appeal.
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Tesla, Inc. v. Hothi, RG/May 23, Page 2 of
This case is a summary proceeding and there is normally no
opportunity for discovery. Respondent's scheduling requests
and request for discovery may be agreed upon by the parties
or addressed at the hearing.
On May 2, 2019, I sent limited documents requests to Tesla's counsel and
asked that Tesla voluntarily provide the requested documents. Those
requests included the following:
Any and all "documents" including all video, still photographs, or
other recordings taken, made, created, or recorded by Matt Cross, Robert
Temmerman, James McDonald, or anyone else in the car, at any time
during the April 16, 2019 journey to film the Navigate on Autopilot features
described in the declarations of Christine Leslie, Matt Cross, Robert
Temmerman, or James McDonald from the beginning of the journey until
the end.
Request No. Two:
Any and all "documents," including video, still photographs, or other
recordings taken, made, created, or recorded at any time on April 16, by equipment attached to or installed in the Tesla Model 3 described in the
declarations of Christine Leslie, Matt Cross, Robert Temmerman, and James
McDonald.
Request No. Three:
Any and all "documents," data, or reports that recorded the
engagement of the Model 3's side-collision (crash) avoidance system as
described in paragraph three of Christine Leslie's declaration.
Request No. Four:
Any and all "incident reports" created at the time of the April 16, incident described in paragraph 3 of Christine Leslie's declaration.
Request No. Five:
AA
Document received by the CA 1st District Court of Appeal.
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Tesla, Inc. v. Hothi, RG/May 23, Page 3 of
Any and all "incident reports" created at the time of the February 21,
2019 incident described in paragraph 2 of Christine Leslie's declaration.
Request No. Six:
Any and all documents including photographs, video, or other
recordings made of the February 21, 2019 incident described in paragraph
2 of Christine Leslie's declaration.
Request No. Seven:
Any and all "documents" that describe, relate to or evidence any
injuries sustained by Tyler James during the February 2 L 2019 incident as
described in his declaration.
"Documents" sufficient to establish that Tyler James, Matt Cross,
Robert Temmerman, and James McDonald were Tesla employees at the
time of the alleged incidents with social security numbers or other personal
information redacted.
Request No. Nine:
Any and all non-privileged statements, correspondence, or other
"documents," in your possession that refer to Plaintiff, whether by his name
Randeep Hothi, skabooshka, or any other name that have been created,
recorded, reviewed, or transmitted within the last 12 months.
Request No. Ten:
The police report referred to in paragraph one of the Christine Leslie
Declaration at bullet point 5, sub-point 3. If "You" do not have a copy of
the police report, please provide any document that identifies the incident
number or other Identifying number of the report.
Request No. Eleven:
A copy of any police report generated in relation the investigation
referred to in Christine Leslie's Declaration at paragraph 2, bullet point five.
If "You" do not have a copy of the police report, please provide any
AA
Document received by the CA 1st District Court of Appeal.
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Tesla, Inc. v. Hothi, RG/May 23, Page 4 of
document that identifies the incident number or other identifying number
of the report.
More than a week later, Tesla's counsel, Mr. Alinder, informed me Tesla
would not comply with the discovery requests, and cited as support Thomas
v. Quintero. (2005) 126 Cal.App.4th 635, 650 [24 Cal.Rptr.3d 619]
On May 2L 2019, when the Court (with the stipulation of the Parties)
continued the hearing to July 26, 2019, I renewed Hothi's request to take
discovery.
Numerous cases support Judge McKinney's statement that in summary
proceedings, there is normally no opportunity for discovery." However, let
us consider the obvious reason, which is apparent from a review of the
relevant statutes and cases law: discovery is normally unavailable in
summary proceedings because hearings on restraining orders must be held
within 21 days of the issuance of a TRO or 21 days of filing of the petition if
no TRO is issued. Cal. Code Civ. Pro. §527.8(h).
Here, we no longer have any such time constraint. There are more than two
months until our July 26 hearing. Moreover, we first made our very narrow
production requests on May 2. We have, in short, an abnormal luxury of
ample time for the limited discovery we seek.
So, we would ask the Court to consider the general rule. A party is entitled
to discovery as "a matter of right unless statutory or public policy
considerations clearly prohibit it." (Greyhound Corp. v. Superior (1961) Cal.2d 355, interpreting the Discovery Act of 1957). California courts have
reiterated that discovery provisions in the Civil Discovery Act of 1986 (CCP
2016-2036) and the Civil Discovery Act (CCP 2016.010-2036.050), which
replaces it, are to be liberally construed in favor of disclosure. (Flagship
Theaters of Palm Des., LLC v. Century Theaters, Inc. (2011) 198 CA4th 1366,
1383).
No language in the harassment statutes, or anywhere else in the California
Code, limits the right to discovery in actions brought under §527.8. While the
AA
Document received by the CA 1st District Court of Appeal.
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Tesla, Inc. v. Hothi, RG/May 23, Page 5 of
Quintero case relied upon by Tesla does say discovery is not normally
allowed, it by no means says that discovery may never be allowed.
Moreover, the trial court could order that discovery in
connection with a pending special motion to strike take place
only after the hearing on the civil harassment petition. To do
otherwise could arguably be an abuse of discretion if a trial
court allowed discovery to go forward at a time, or in a
manner, which interfered in any way with the prompt hearing
on a petition under section 527.6.
/Quintero, 126 Cal.App.4th at 628-29 (emphasis added)). The implication is
that discovery occurring in the midst of a pending petition for injunctive
relief is offensive only if (as would typically be the case where timetables
are tight) it might interfere with a prompt hearing on the injunction. Again,
in the Case before this Court, we now have the luxury of time.
GOOD CAUSE AND RELEVANCY
Now, to explain why the discovery Hothi seeks is vitally important in this
Case.
Tesla's pleadings allege two key events, both of which Tesla claims were
"violent and intimidating confrontations" (Petition for TRO, Form WV-100 at
Item 5):
First, on incident on February 21, 2019 in the parking lot at Tesla's Fremont
factory where, according to Tesla, Hothi "hit Tesla's security employee Tyler
James with his car" and then "fled the scene" [id.] driving "quickly and
AA
Document received by the CA 1st District Court of Appeal.
As for the Thomas v. Quintero case relied upon by Tesla, there the court was
called upon to determine whether a petition for injunctive relief under
California's civil harassment statute is subject to a special motion to strike
under the anti-SLAPP statute. The party contending that a special motion
to strike was unavailable argued that discovery in the special motion would
inhibit disposition of the petition for injunctive relief. The court disagreed. It
held that the petition for injunctive relief was subject to a special motion to
strike, and explained why the latter need not interfere with the former:Page 89 From: The Law Office of D GI Fax:
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Tesla, Inc. v. Hothi, RG/May 23, Page 6 of
recklessly out of the parking spot" [id., Christine Leslie Deel. at 2]
"Parking Lot Incident") and
(the
Second, an incident on April 16, 2019 when for 35 minutes or so Hothi
observed a Tesla Model 3 car that was engaged in autonomous driving
testing, during which, according to Tesla, Hothi "stalked, harassed, and
endangered" the car's occupants, "swerving dangerously close," thereby
causing the occupants to fear Hothi's conduct "would cause a collision
and injure them." (the "Roadway Incident").
Discovery Regarding the Parking Lot Incident
As to the Parking Lot Incident four key questions arise:
(2) In so exiting the space, did Hothi's car strike Tyler Jomes?
(3) If so, does it appear Hothi intended to strike Jomes? and
(4) What prompted Tesla to send its security personnel to Hothi's car
in the first place?
Hothi' s Requests 5, 6, 7, 9, 10, and 11 ore all narrowly framed to answer these
key questions.
Request 5 seeks all "incident reports" relating to the Parking Lot Incident.
Note that the police report attached to the Hothi Declaration that is port
of Hothi's Response contradicts the claim of Christine Leslie (who was not a
witness to the event) that Hothi exited his space "quickly and recklessly."
Tyler James evidently told the police that as James approached the
vehicle, "Rondeep drove away at a slow rote of speed."
Request 6 seeks photographs, video, or other recordings of the Parking Lot
Incident. Tesla hos cell phone and security camera video of the event. The
police have seen those videos, as have the prosecutors who, after
watching them, declined to prosecute for hit and run. This is obviously
important and potentially exculpatory evidence.
Request 7 seeks all documents describing or evidencing injuries sustained
by Tyler James incident. Notably, in the police report prepared the day of
AA
Document received by the CA 1st District Court of Appeal.
(1) At what speed did Hothi exit his parking space?Page 90 To:
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Tesla, Inc. v. Hothi, RG/May 23, Page 7 of
Request 9 seeks Tesla's file on Hothi. Why is this important? It is evident from
the Christine Leslie Declaration that Tesla put Hothi on its "enemies list" at
least as early as the Spring of 2018. It appears from the police report that
Tesla security knew Hothi had entered the property ("On 02/21/2019, at
approximately 1411 hours, Tesla security got a hit on their license plate
readers that there was a vehicle in the lot that was not supposed to be on
the property.") Hothi will show that Tesla treated him quite differently from
other visitors to the Fremont parking lots, who are able to come and go
unmolested. The file on Hothi will show why: Tesla, with a long history of
punishing its critics, was determined to punish Hothi.
Hothi already has obtained the police reports sought in Requests 1oand 11,
so there is no need for Tesla to produce them.
Discovery Regarding the Roadway Incident
As to the Roadway Incident, the question is, did Mr. Hothi, as Tesla alleges,
"swerve dangerously close" to the Tesla vehicle in such a manner as to
amount to "a credible threat of violence"?
Requests 1. 2. 3. 4. and 8 are all narrowly framed to answer this question.
Requests 1. 2.
3.
and 4 seek documents, photographs, and video of the
Roadway Incident. There is simply no doubt Tesla has this evidence.
The Tesla Model 3 has eight integrated cameras. Tesla's great boast about
its supposedly imminent "Full Self-Driving" capabilities is that the cameras
transmit to Tesla headquarters video and other data that enables Tesla to
develop and refine software for its "Autopilot."
There were two additional cameras mounted on the roof. There were two
passengers in the back seat with cell phones that functioned as cameras.
AA
Document received by the CA 1st District Court of Appeal.
the incident. there is no mention of any injury. Three weeks later, though,
Mr. Tyler claimed he had sought medical attention. Tesla has employed
doctors who have unethically minimized injuries to its employees. See,
Inside Tesla's factory, a medical clinic designed to ignore injure workers,
revealnews.org, Nov. 5, 2018, attached hereto as Exhibit A. Hothi should be
allowed to test whether those same compliant doctors are also willing to
invent injuries when circumstances dictate that is in Tesla's interest.Page 91 From: The Law Office of D GI Fax:
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Tesla, Inc. v. Hothi, RG/May 23, Page 8 of
If Hothi was actually driving in such a way as to endanger the occupants
of the Model 3 car, then there is no question the video evidence exists to
demonstrate that behavior. Tesla has it and should produce it in advance
of the hearing. All 35 minutes of it.
In addition to the narrow discovery sought from Tesla, Hothi also requests
that he be allowed to propound focused third party discovery as well.
Specifically, Hothi seeks to serve subpoenas on the Fremont and San
Francisco Police Departments relevant to the Parking Lot Incident and
Roadway Incident. Again, there is no possibility that such discovery will
delay the disposition of this matter. However, it may well inform the
disposition.
HEARING PROCEDURES
As the Court indicated at the May 21, 2019 bench conference, this matter
is more complicated and requires more time than the average restraining
order hearing. In order to assist the attorneys prepare in a manner that is
most efficient for the Court Hothi requests that the Court direct the parties
to exchange witness lists a week prior to the hearing.
Also, counsel previously inquired with the court clerk about the ability to
show video exhibits during the hearing. The clerk indicated it was best to
have video available on a tablet or other device. Counsel would like to
confirm that this is the Court's preference. Counsel will also have video
exhibits available on thumb drive or DVD.
AA
Document received by the CA 1st District Court of Appeal.
Request 8 seeks evidence that the occupants of the car were actually, as
Tesla alleges, Tesla employees. The request expressly permits Tesla to redact
data such as Social Security Numbers. Note that Mr. James is the owner of
a private investigation company hired by Tesla and does not appear to be
a Tesla employ as claimed in the Petition. See, https://jsgfirm.com/ourteam/.Page 92 From: The Law Office of D GI Fax:
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Tesla, Inc. v. Hothi, RG/May 23, Page 9 of
CONCLUSION
This is an unusual case that has attracted widespread media attention. The
harm in this case to Hothi's reputation is quite real. Already, scores of Tesla
fans have attacked him in social media, claiming he is a terrorist, a criminal,
a liar.
Respectfully,
D. GILL SPERLEIN
Attorney for Respondent Randeep Hothi
cc:
Zachary J. Alinder
Ellen P. Liu
AA
Document received by the CA 1st District Court of Appeal.
Under these circumstances, and given the narrow framing of Hothi's
production requests, we respectfully ask this Court to order Tesla to produce
the items sought in Requests l through 9 and to grant Hothi the right to
subpoena the Fremont and San Francisco police departments for
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DECLARATION
OF
RANDEEP HOTHI
EXHIBIT
Document received by the CA 1st District Court of Appeal.
From: The Law Office of D GI Fax:
CASE No. RGDECLARATION OF RANDEEP HOTH!- EXHIIllT
AA692Page 94 To:
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One Embarcadero Cent~r, Twenty~Sel.'.ond Floor
SIDEMAN =
BANCROFT
San Frandsco, Callfornla 94111~Telephone: (415) 392~Facsimile: {415) 392-
Zachary J. Allnder
zallnder@sideman.com
June 3, The Honorable Jeffrey S. Brand
Alameda County Superior Court
Department Hayward Hall of Justice
24405 Amador Street
Hayward, CA
Tesla, Inc. v. Randeep Hoth/, Case No. RG
Dear Judge Brand:
Petitioner Tesla, Inc. ("Tesla") respectfully requests that the Court deny the discovery
sought by Respondent Randeep Hothi ("Mr. Hothi") in his May 23, 2019 discovery letter brief.
Mr. Hothi seeks far more intrusive, burdensome-and irrelevant-discovery than his counsel
represented to the Court at the May 21 hearing. Meanwhile, the law does not provide for any
discovery in this summary proceeding: "[t]here is no provision under section 527.6 allowing for
discovery," and "no case holds that discovery is allowed under section 527.6." Thomas v.
Quintero, 126 Cal. App. 4th 635, 650 (2005). The fact that the hearing has been continued
because of the unavailability of Mr. Hothi's counsel-and the fact that Mr. Hothi apparently
would like to spend the more than $100,000 crowd-funded for his defense-are not reasons to
depart from established precedent or permit Mr. Hothi to transform this summary proceeding
into a full-blown litigation circus.
To put Mr. Hothi's requests into perspective, Mr. Hothi is a Tesla short-seller who has
dedicated years of his life to "researching" alleged corporate "malfeasance" at Tesla--during
which he has unlawfully trespassed at Tesla's Fremont factory innumerable times, planted
cameras on Tesla's private property, and more recently, hit a Tesla employee in the Tesla
parking lot and harassed and intimidated Tesla employees driving on public roads. Mr. Hothi
gains notoriety by posting the results of his "research" for his followers on Twitter, which is no
doubt what he hopes to do with any non-public materials he might reeeive here. In short, Mr.
Hothi's "discovery" requests must be seen for the fishing expedition they are-attempts to get
The provisions of CCP 527.8, the statute that governs workplace violence restraining
orders, are parallel to those in CCP 527.6, which govern civil harassment orders. Scripps Health
v. Marin (1999) 72 Cal.App.4th 324, 333. Therefore, the reasons why discovery is not allowed
in section 527.6 proceedings apply equally to this section 527.8 proceeding before Your Honor.
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The Honorable Jeffrey S. Brand
June3,Page non-public information about Tesla, including the partially-autonomous drive that he broke the
law and harassed Tesla's employees to record. Other requests, seeking "incident reports" and
Tesla's complete files related to Mr. Hothi, would reveal Tesla's highly confidential security
protocols and investigative methods, along with information that is privileged, and would
undermine Tesla's ability to keep all employees safe from future threats, including Mr. Hothi.
Discovery of these materials should be categorically denied, especially in a summary proceeding
designed to protect employees, like this one.
Again, Tesla believes that no discovery is permitted in this proceeding. However, if
discovery is allowed, Mr. Hothi should be required to produce reciprocal discovery, including at
a minimum, for the last twelve months: (1) all documents (including emails, texts, photographs,
and Twitter messages) evidencing, referencing, or discussing his presence at the Fremont
factory, including on February 21, 2019 and any other date, (2) all documents discussing or
evidencing his pursuit of the Tesla vehicle on April 16, 2019, including photographs and videos.
Finally, if any discovery is allowed, it should be accompanied by the entry of an
appropriate protective order.
RELEVANT FACTUAL BACKGROUND
Mr. Hothi is part of a group of Tesla short sellers, identifying themselves as TSLAQ,
signifying their hope for Tesla to go bankrupt. See https://www.investopedia.com/terms/g/g.asp.
With gratitud~ !or all my ptopl~, I heliwe I
~m liborat~d from purgatory. Yo1J\•Q rn·
a11imated me, and now! am •livif1ed. And
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No rupite u1111I we pl~y the dirg, of ovr
d.adi11g corporat~ m~l;ifaC!or.
No res! ~nt1I 1SLAQ.
AA
,or
Document received by the CA 1st District Court of Appeal.
The law provides Mr. Hothi with the right to a hearing on Tesla's application, which is
the exclusive statutory mechanism for the Court to decide whether to extend the preliminary
restraining order. Mr. Hothi will have the right to testify and have his ercdibility decided by the
Court,just as the Court will deeide the credibility of Tesla's employees' accounts of the events at
issue. The proceedings here do not allow for discovery, and none is warranted. As a matter of
public policy and consistent with the law, Mr. Hothi should not be allowed to turn his own illegal
conduct and his counsel's unavailability into a tool for his "research" or fodder for his Twitter
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The Honorable Jeffrey S. Brand
June 3, Page
See 5/2112019 Alinder Declaration, 11 2 & 4. Over the past year, Mr. Hothi has posted
numerous photos of Tesla's employee and contractor parking lot (see id., 15 & Ex. A), and more
recently has planted portable cameras on Tesla property at least twice. See 4/19/2019 Leslie
Declaration at p. 1. But what appears to have started as an unlawful, but non-violent, attempt to
glean non-public information to help his short selling efforts has escalated rapidly over the past
six months into more serious and threatening conduct.
Mr. Hothi told police ofticers that he was taking a nap in a random parking lot. See
5/17/2019 Hothi Declaration, Ex. A at p. 3 ("Randeep told me that he was sleeping in his vehicle
at Tesla when he was approached by someone who told him to leave .... Randeep was unable to
specifically explain why he picked Tesla's parking lot to take a nap. Randeep stated it was just a
random parking lot he found."). Meanwhile, Mr. Hothi told a completely different, but equally
implausible, story to this Court in his May 17, 2019 Declaration, claiming that he was there to
visit the Tesla showroom. See 5/17/2019 Hothi Declaration, 14. As Mr. Hothi knows from his
frequent trespassing, the employee parking lot is not anywhere near the Tesla showroom. See
5/21/2019 Leslie Declaration, 13 & Ex. A.
Finally, on April 16th, Mr. Hothi's conduct escalated further when he used his car to tail,
move around, and swerve next to, a Tesla car as it was driving from Tesla's Fremont facility up
the 880 to the Bay Bridge. See 4/19/2019 Employee Declarations.· He even continued to follow
the test car after it exited the Bay Bridge on Treasure Island. See id. Those employees
understandably feared for their personal safety. See id. They called the police, and had no prior
knowledge of Mr. Hothi. See id.
On April 20th, after Tesla's April 19 Restraining Order was entered against him, Mr.
Hothi did not show contrition or remorse for his actions, but rather responded with another bonechilling tweet, "promis[ing]" not to stop his campaign against Tesla and its employees:
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Document received by the CA 1st District Court of Appeal.
In February, Mr. Hothi was caught staking out an employee parking lot, clipping the leg
of a Tesla security officer as he departed. See 4119/20 I 9 James Declaration, p. I. Mr. Hothi has
not been truthful about that incident.Page 97 From: The Law Office of D GI Fax:
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The Honorable Jeffrey S. Brand
June 3, Pageskabooshka«tsk8bQOSl11~~
not rest
Is a zem.
is my omn1is11.
· will go to
Prior to the May 21 hearing, Tesla also sought Mr. Hothi's agreement to just stipulate to
stay away from the two Tesla facilities at issue, including the one for which the Fremont police
have already issued a no-trespass warning. See 5/21/2019 Alinder Declaration, ,r 7. Mr. Hothi
refused. See id. In short, Mr. Hothi has confirmed, subsequent to the filing of this action, a high
probability that his misconduct, and endangerment of Tesla employees, will be repeated in the
future.
RELEVANT PROCEDURAL BACKGROUND
On April 19, 2019, Tesla sought a workplace violence restraining order against Mr.
Hothi, arising out of the threat of violence that he posed to Tesla's employees. On May 1, 2019,
Mr. Hothi filed a Request to Continue Hearing, which included a request that the Court allow
discovery. The Court granted Mr. Hothi's requested continuance, re-calendaring the hearing for
May 21, 2019. The Court did not order any discovery, but instead noted that "[t]his case is a
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The Honorable Jeffrey S. Brand
June 3,Page summary proceeding and there is nonnally no opportunity for discovery." The Court invited the
parties to agree to any discovery or to discuss the discovery requests at the May 21 hearing.
On May 2, 2019, counsel for Mr. Hothi ("Mr. Sperlein") sent a formal set of eleven
document requests to Tesla's counsel, asking for significant discovery of"any and all"
documents related to numerous topics. See Hothi Discovery Letter Brief, pp. 2-4.
"We have reviewed the Court's order eontinuing the hearing at your client's
request, as well as your May 2nd letter and requested discovery. As an initial
matter, the Court noted in its order that "[t]his case is a summary proceeding and
there is normally no opportunity for discovery." Consistent with the Court's
order, we do not believe discovery is appropriate in this case, and we are not
aware of any basis under the law for your discovery requests. Indeed, the only
relevant authorities that we have found confirm that there is no discovery in such
summary proceedings. See, e.g., Thomas v. Quintero, 126 Cal. App. 4th 635, (2005). If you can provide any legal authority to support discovery requests in
this context, however, we would be happy to consider it. We are also happy to
st
discuss further at the hearing currently scheduled for May 21 .''
Mr. Sperlein did not provide any relevant legal authority in response to my email,
confinning that he did not have any legal support for the discovery requests.
At the May 21, 2019 hearing, the Court continued the hearing to July 26, 2019, primarily
due to Mr. Sperlein's unavailability in June, and Mr. Sperlein renewed Mr. Hothi's request to
take discovery. Mr. Sperlein represented to the Court that he was only requesting discovery of
any video that may exist regarding two events -- the February 21 parking lot incident and the
April 16 drive incident. Even with that more limited scope, the Court asked Mr. Sperlein to set
forth his request for discovery in a letter brief.
Mr. Sperlein filed his discovery letter brief on May 23, 2019. In it, Mr. Sperlein reversed
course from his statements at the May 21 hearing. Rather than asking for two videos, Mr.
Sperlein has reverted to the far-ranging requests from his original set, nine in all, removing only
the two requests for which Mr. Hothi was able to obtain docmnents himself. The May discovery letter brief confinns that Mr. Hothi is not entitled to discovery, and that his requests
are an attempt to leverage his own illegal conduct and his counsel's unavailability into a Tesla
fishing expedition.
RELEVANT LEGAL STANDARD
Tesla's application is made pursuant to CCP § 527.8, which sets forth a detailed
procedure for expedited decision on a workplace violence application. The statute makes no
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Document received by the CA 1st District Court of Appeal.
On Monday, May 6, I responded to Mr. Sperlein that I had been out of the office, but
would review his requests and respond by the end of the week. On May 10, I responded to Mr.
Sperlein's requested diseovery as follows:Page 99 From: The Law Office of D GI Fax:
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The Honorable Jeffrey S. Brand
June 3, Page provision for discovery, and instead provides the Respondent with the opportunity to present
evidence at "the hearing," which is where "the judge shall receive any testimony that is relevant
and may make an independent inquiry." CCP § 527.80). The trade off, from Tesla's
perspective, is that the need for a restraining order must be proved by "clear and convincing"
evidence. Id.
Mr. Hothi's only argument in suppoti of his request for discovery now is that because the
Court has rescheduled the hearing for July 26,2019 to accommodate Mr. Sperlein's
unavailability in June, there may be enough time to conduct discovery. But the crux of Thomas
v. Quintero was not the shminess of time, but the fact that "[t]here is no provision under section
527.6 allowing for discovery." l11e discovery letter brief cites no authority, and Tesla is aware
of none, applying normal civil litigation discovery rules to summary proceeding like this one.
In summary, Mr. Hothi has not cited to a single case where discovery was allowed in a
CCP §§ 527.6 or 527.8 case and has not justified why the Court should be the first to make an
exception, all because Respondent's counsel is unavailable for a hearing in June.
TESLA PROPERLY OBJECTED TO MR. HOTHl'S DISCOVERY REQUESTS
Even if the discovery standard in a normal civil litigation applied (though it does not),
Mr. Hothi would not be entitled to the overbroad, unduly burdensome, and intrusive discovery
that he seeks here. Each request is objectionable for at least the following reasons4:
As set forth in Footnote No. 1 above, the provisions ofCCP 527.8, the statute that
governs workplace violence restraining orders, are parallel to those in CCP 527 .6.
All of the cases cited by Mr. Hothi (see Hothi Brief at p. 4, citing Greyhound Corp. v.
Superior, 56 Cal. 2d 355 (I 961 ), and Flagship Theaters ofPalm Des., LLC v. Century Theaters,
Inc., 198 Cal. App. 4th 1366 (2011)) are inapposite because they interpret the Civil Discovery
Act, not the statutes governing this proceeding, and thus are neither relevant nor helpful.
To the extent that any formal response to Mr. Hothi's discovery requests served on May
2, 2019 is required, the following objections constitute Tesla's specific response to each request.
AA
Document received by the CA 1st District Court of Appeal.
Mr. Hothi has had weeks to locate any legal authority that declines to follow or otherwise
distinguishes Thomas v. Quintero, 126 Cal. App. 4th 635, 650 (2005), where the court held:
"There is no provision under section 527.6 allowing for discovery, and in any case, under the
civil harassment scheme there is insufficient time in which to conduct discovery." Despite
having multiple opportunities to do so, Mr. Hothi has failed to provide any relevant legal
authority to the contrary and in fact conceded in his brief that"[ n]umerous cases support Judge
McKinney's statement that in summary proceedings, there is normally no opportunity for
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• Request No. 1 (any and all documents including video taken by
Cross/Temmerman/McDonald on April 16 drive): Objectionable as it calls for
confidential/proprietary/private information, is unduly burdensome and overbroad
in the use of any and all. The requests are also overbroad insofar as they seek
confidential video, recordings. and photos that do not depict Mr. Hothi or have
anything to do with the conduct at issue.
• Request No. 2 (any and all documents including video described in
Leslie/Cross/Temmerman/Cross declarations): Objectionable as it calls for
confidential/proprietary information, is unduly burdensome and overbroad in the
use of any and all, and is duplicative since the information is already detailed in
the declarations themselves or is within Hothi's .control. The requests are also
overbroad insofar as they seek confidential video, recordings, and photos that do
not depict Mr. Hothi or have anything to do with the conduct at issue.
• Request No. 3 (any and all documents that recorded engagement of side
collision avoidance system): Objectionable as it calls for confidential/proprietary
information, is unduly burdensome in the use of any and all, overbroad in the use
of any and all.
• Request No. 4 (any and all "incident reports" described in the Leslie
declaration re April 16): Objectionable as it calls for confidential/proprietary
information, is unduly burdensome and overbroad in the use of any and all, vague
and ambiguous in the term "incident reports," and seeks attorney work product or
privileged infonnation based on the vague and ambiguous term "incident reports."
Would also reveal Tesla's highly sensitive, confidential security protocols and
investigative methods, and would prejudice Tesla's efforts to keep all employees
safe.
• Request No. 5 (any and all "incident reports" described in the Leslie
declaration re February 21 ): Objectionable as it calls for
confidential/proprietary information, is unduly burdensome and overbroad in the
use of any and all, vague and ambiguous in the term "incident reports," and seeks
attorney work product or privileged information based on the vague and
ambiguous term "incident reports." Would also reveal Tesla's highly sensitive,
confidential security protocols and investigative methods, and would prejudice
Tesla's efforts to keep all employees safe.
• Request No. 6 (any and all documents including photos, video made of
February 21 incident): Objectionable as it calls for confidential/proprietary
information, is unduly burdensome in the use of any and all, overbroad in the use
of any and all, and may improperly seek attorney work product or privilege
information based on the use of the undefined term "made of."
• Request No. 7 (any and all documents that describe, relate to or evidence
injuries sustained by Tyler James): Objectionable as it calls for
confidential/private medical infonnation, is unduly burdensome in the use of any
and all, overbroad in the use of any and all, vague and ambiguous in the term
"incident reports," and improperly seeks attorney work product and privileged
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infonnation in the use of the tem1s "describe, relate to or evidence." Producing
the requested documents would also reveal Tesla's highly sensitive, confidential
security protocols and investigative methods, and would prejudice Tesla's efforts
to keep all employees safe.
• Request No. 8 (documents establishing that James/Crossffemmerman/
McDonald were Tesla employees): This request is
duplicative/cumulative/unduly burdensome as to Cross/Temmennan/McDonald,
as they have each put in declarations in this matter, and there is no reason to
question their status as employees at the time of the incident.
• Request No. 9 (any and all non-privileged documents re Mr.
Hothi/Skabooshka): Objectionable as it is unduly burdensome in the use of any
and all, overbroad in the use of any and all. It would be a significant undertaking
to search one person's email inbox for all documents related to an identified
person-particularly after litigation has commenced-let alone the inboxes of
everyone in the company. Would also reveal Tesla's highly sensitive, confidential
security protocols and investigative methods, as well as privileged materials, and
would prejudice Tesla's efforts to keep all employees safe.
Most of Mr. Hothi's requests have nothing to do with the ultimate issue: whether the
listed Tesla employees in need of protection suffered unlawful violence or a credible threat of
violence (see CCP 527.S(a)). His request at the May 21 hearing for videos/photos depicting Mr.
Hothi's driving on February 21 and April 16 may contain some infonnation that is relevant.
Even then, however, only the portions that actually show Mr. Hothi's conduct are actually
relevant. The rest of the videos, while undoubtedly of interest to a short-seller like Mr. Hothi,
are not relevant, are highly confidential, and do not belong in Mr. Hothi's hands.
MR. HOTHI DOES NOT, AND CANNOT, JUSTIFY HIS INTRUSIVE AND
BURDENSOME DISCOVERY
In his letter brief, Mr. Hothi claims to seek answers to four irrelevant questions relating to
an incident on February 21 involving a Tesla employee who is not one of the three listed Tesla
employees in need of protection: "(l) At what speed did Hothi exit his parking space? (2) In so
exiting the space, did Hothi's car strike Tyler James? (3) If so, does it appear Hothi intended to
strike James? and (4) What prompted Tesla to send its security personnel to Hothi's car in the
first place?" (see Hothi Brief at p. 6, Requests 5,6, 7,9).
None of Mr. Hothi's questions regarding the incident on February 21 are relevant to
whether Tesla employees suffered unlawful violence or a credible threat of violence on April 16,
2019. The February 21 incident is only relevant to show Mr. Hothi's pattern of illegal behavior,
his increasingly violent actions, and his false statements about the incident. It is not relevant to
Note that Mr. Temmennan has since left Tesla's employ. As such, and to the extent the
Court finds it appropriate, Mr. Temmerman may be removed from the order.
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Mr. Hothi's remaining requests (1, 2, 3, 4, and 8) allegedly seek broad and intrusive
discovery relating to the April 16, 2019 incident, where he used his car to tail, move around, and
swerve next to a Tesla test car as it was driving from Tesla's Fremont factory up the 880 to the
Bay Bridge. Because Mr. Hothi took pictures and videos of the drive himself (in violation of
California's vehicle cocles), he already has in his possession the evidence he needs for his
attempted defense. He brought a binder full of those videos/pictures to the May 21 court hearing
- with multiple videos and dozens ofphotos in all. He has not shown good cause to obtain any
of Tesla's highly confidential and proprietary demo videos, photographs, vehicle data, and
documents (Request Nos. I, 2, 3)-the very type of information he was trying to get when he
pursued the Tesla employees' car on April 16. Nor has he established how Tesla's confidential
and potentially privileged/work product internal documents regarding the incident should be
discoverable (Request No. 4). Importantly, disclosure of these documents would reveal highly
confidential details of Tesla's security protocols, investigative procedures, and other sensitive
information, and would undermine Tesla's efforts to protect its employees from trespassers and
other threats at the Fremont factory and elsewhere. Finally, Mr. Hotl1i's request for additional
proof of employment for the Tesla employees in the test car (Request No. 8), when they have
already submitted sworn statements that they were working for Tesla on April 16, 2019, is on its
face cumulative, duplicative, and unduly burdensome.
Mr. Hothi's nine requests seek the disclosure of highly confidential and proprietary
information that is not remotely justified in such a summary proceeding. The discovery sought
here would also impose a significant and undue burden of cost and time on Tesla and its counsel
to collect, review, and produce the responsive documents, as well as to produce a privilege logprocesses that occur in civil discovery over a matter of many months at a minimum. Mr.
Hothi's requests also raise serious public policy concerns, as subjecting a Petitioner employer to
intrusive discovery on workplace violence applications would subvert the very purpose of these
summary proceedings, would discourage future applications, and delay prompt decisions on
others. The Court should not make an exception for Mr, Hothi here.
Mr. Hothi's theory that Mr. James is making up his injuries is undercut by his father's
sworn statement that on February 21, 2019, a police officer visited their home investigating Mr.
James' claims that Mr. Hothi hit him with his ear. Declaration ofKalvinder Singh at 15.
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the Court's determination here whether Mr. Hothi intended to strike Tyler James (see City of San
Jose v. Garbett, 190 Cal. App. 4th 526, 538 (2010)), whether Hothi was criminally prosecuted for
the hit and run on February 21, or whether Mr. James suffered serious injuries. On the other
hand, the documents sought by Mr. Hothi would disclose Tesla's highly sensitive, confidential
security protocols and investigative methods, along with material protected by the attorney-client
privilege and attorney work product (Request Nos. 5, 6, 9), and Mr. James' medical records
(Request No. 7). Accordingly, none of the records Mr. Hothi seeks regarding the February incident should be discoverable. At most, only those portions of any video/photos that depict
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June 3, Page In short, the Court should deny all discovery requested by Mr. Hothi. However, should
the Court allow any discovery before the July 26 hearing, the Court should limit the discovery to
only il)clude those portions of any video and photographic images depicting Mr. Hothi 's
threatening conduct against Tesla's employees.
IF DISCOVERY IS ALLOWED, IT MUST BE RECIPROCAL AND SUBJECT TO AN
ATTORNEYS' EYES ONLY PROTECTIVE ORDER
Regardless of the scope, to the extent that the Court allows any discovery, Tesla would
need a strict protective order forbidding the use of any Tesla confidential/proprietary information
outside of the July 26 hearing-and restricting Tesla's confidential information to Attorneys'
Eyes Only. Mr. Hothi's discovery implicates significant confidentiality concerns in general, as
discussed above, but those concerns are amplified with respect to Mr. Hothi, who spends vast
amounts of his free time trying to get his hands on Tesla confidential information, and who is a
short-seller with financial and reputational interests in harming Tesla. Mr. Hothi's proposed
discovery, including video and photographic evidence, seeks disclosure of non-public and
sensitive business information, as well a~ highly confidential details of Tesla's security
protocols, investigative procedures, and other sensitive information, the disclosure of which
would undermine Tesla's efforts to keep its employees safe.
Finally, to the extent that the Court is inclined to allow discovery beyond the portions of
the two videos and Mr. Hothi's reciprocal evidence discussed above, the Cou1t should order Mr.
Hothi to pay for the document collection, review, and production costs. See Civil Serv.
Employees Ins. Co. v. Superior Court, 22 Cal.3d 362,378 (1978) (citing to Greyhound Corp. v.
Superior Court, 56 Cal.2d at 383-384) (shifting of discovery expenses lies within the sound
discretion of the trial court); see also Legal Voice v. Stormans Inc., 738 F.3d 1178, 1184 (9th Cir.
2013) (shifting costs of compliance with a subpoena if the costs are significant).
RESPONSE REGARDING HEARING PROCEDURES
Mr. Sperlein has further requested that the parties exchange witness lists prior to the
hearing. That request anticipates some cross-examination. Tesla would request that the Court
Mr. Hothi's extensive history trespassing at the Fremont factory bears directly on his
likelihood of doing so in the future.
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Document received by the CA 1st District Court of Appeal.
Moreover, if discovery is allowed, Tesla should be permitted to serve reciprocal
discovery on Mr. Hothi. That discovery would include, at least, requests for: (1) all documents
(including emails, texts, photographs, and Twitter messages) evidencing, referencing, or
discussing his presence at the Fremont factory (including the parking lot) for the last twelve
months, including on February 21, 2019, (2) all documents discussing or evidencing his pursuit
of the Tesla vehicle on April 16, 2019, including photographs and video and communications on
Twitter and with those crowd-funding his defense.Page 104 From: The Law Office of D GI Fax:
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June 3, Page confirm wh.ether the Court will allow cross-examination as a preliminary matter. If so, Tesla
does not object to the request for the parties to exchange witness lists, but requests that the
exchange be made three court days prior to the hearing.
Finally, if discovery is allowed (which it should not be), Tesla reserves the right to ask
that the courtroom be closed for portions of the July 26 hearing, to the extent that sensitive, nonpublic Tesla information will be displayed or otherwise used. Tesla will raise that issue by
separate submission to the Court, if circumstances so require.
CONCLUSION
To the extent the Court allows any discovery (though it should not), that discovery must
be limited to (a) on the Tesla side, those portions of any videos of the February 21 and April incidents depicting Mr. Hothi's threatening conduct; (b) reciprocal discovery from Mr. Hothi of
all documents, videos, and photographs (i) related to Mr. Hothi's presence at the Tesla Fremont
factory over the past year (including during the February 21 incident), and (ii) related to the
April 16 incident, as described further above. If so, such discovery should be accompanied by
the entry of an appropriate Protective Order.
Respectfully yours,
•
Zachary J. Alinder
cc:
D. Gill Sperlein
9963-
AA
Document received by the CA 1st District Court of Appeal.
For the foregoing reasons, Tesla respectfully requests that the Court deny Mr. Hothi's
request for discovery. There is no basis to deviate from the settled legal precedent that there is
no discovery in summary proceedings. The public policy ramifications of allowing discovery in
contravention of the law are significant. A minor delay in the hearing here due to the
unavailability of Respondent's counsel in June does not justify this discovery either.Page 105 To:
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01/11/20211:13 PM
DECLARATION
OF
RANDEEP HOTHI
EXHIBIT
Document received by the CA 1st District Court of Appeal.
From: The Law Office of D GI Fax:
CASE No. RGDECLARATION OF RANDEEP HOTH!- EXHIIllT
AA704Page 106 From: The Law Office of D GI Fax:
To:
Fax: (510) 267-
Pagi111ii11ul 11i1ii11I 1111liiii1if1i111l1i 1i11i1l PM
FILED
ALAMEDA COUNTY
SUPERIOR COURT OF THE STATE OF CALIFORNIA
IN AND FOR THE COUNTY OF ALAMEDA
ESLA, et al,
Plaintiffs,
II
V,
No. RG19-ORDER ON REQUESTS FOR DISCOVERY
OTHI, et al,
Defendants.
Petitioner Tesla and Respondent Hothi have filed letter briefs with the court on the issue
of whether pre-hearing discovery should be pennitted in this case. After consideration of the
letters, IT IS ORDERED: The requests for pre-hearing discovery are GRANTED IN PART and
DENIED IN PART. The motions for discovery are GRANTED to the extent they request the
production of photographic, audio, or video recordings of the alleged incidents on February
and April 6, 2019. Each party shall produce to the other any such evidence on or before Tuesday
July 16, which is 10 days of the hearing scheduled for Friday July 26, 2019. The motions are
otherwise DENIED.
Ill
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BACKGROUND
This case is an action under CCP 527.6 and CCP 527.8 for civil harassment action and
workplace harassment.
Petitioner Tesla alleges that respondent Randeep Hothi engaged in violence, threats of
violence or a course of conduct warranting the issuance of a permanent order. Tesla's petition is
based on two incidents: (1) an incident on February 21, 2019 in the parking lot of Tesla's
Fremont facility wherein respondent "hit Tesla's security employee ... with his car" and then
"fled the scene" in a "reckless manner" as he left the parking lot and (2) an incident on April 6,
2019 on public roads wherein respondent "stalked harassed and endangered" a Tesla Model
automobile engaged in autonomous driving testing.
On April 19,2019, Tesla filed the action. OnApril 19,2019,thecourtentereda
temporary restraining order and set a hearing for May 7, 2019. Hothi requested a continuance of
the hearing to permit time for discovery. The court granted the request and re-set the hearing to
May 21, 2019. On May 21, 2019, the court requested briefing on whether the court can permit
discovery and also continued the matter to July 26, 2019. The length of the continuance was to
accommodate counsels' schedules and was not to permit time for discovery.
Hothi's letter to the court dated May 23, 2019, states that Hothi seeks discovery,
including video, photographic and audio recordings, incident and investigation reports, "non-
privileged statements," correspondence, and police reports relating to both incidents. Hothi
makes 11 requests in all.
ORDER ON DISCOVERY
CCP section 527.6 does not provide for discovery in harassment cases, including actions
alleging workplace violence. Hothi' s letter brief of 5/23/19 at page 4 acknowledges "there is
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normally no opportunity for discovery" in summary proceedings seeking harassment-related
restraining orders. Tesla and Hothi both cite Thomas v. Quintero (2005) 126 Cal.App.4th 635,
650 fn 11, which states:
01/11/20211:13 PM
There is no provision under section 527.6 allowing for discovery, and in any case,
under the civil harassment scheme there is insufficient time in which to conduct
discovery. (See generally Byers v. Cathcart, supra, 57 Cal.App.4th at p. 811, CaLRptr.2d 398; Diamond View Limited v. Herz, supra, 180 Cal.App.3d 612, 619620, fn. 8, 225 Cal.Rptr. 65 L) Section 527.6, subdivision (d) requires the trial court
to "receive any testimony that is relevant" at the hearing.
Byers v. Cathcart, 57 Cal.App.4 th at 811, states that CCP 527.6 "provides a quick and truncated
procedure." Diamond View Limited v. Herz (1986) 180 CaLAppJd 512, 519 fn 8, states,
"Section 527.6 is a special statute which significantly changed the ordinary procedures and
requirements in actions for injunctive relief by altering the provisions relating to pleading,
temporary restraining orders, undertakings, attorney's fees, discovery and trial."
The court holds as a matter of law that there is no right to discovery in petitions for
harassment under CCP 527.6 and 527.8, The law provides for a short and truncated procedure
and a quick resolution of the dispute. A right to discovery would run counter to the legislative
goals.
The dangers envisioned by the courts in Thomas, Byers, and Diamond View are evident in
this case. At the court's May 21 hearing, Hothi requested time to seek discovery, citing at that
time primarily video evidence that might be available to negate Tesla's claims. The court
invited letter briefs to outline the parties' positions with regard to their right to discovery in this
type of action. That invitation has now spawned 26 single-spaced pages of"letter briefs," along
with tens of pages of attachments, in support of and in opposition to Hothi's .broad-based
requests for discovery described above, which, in turn, have drawn predictable objections from
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Tesla and claims of confidentiality, privacy, burdensome, overbreadth and proprietary rights
along with requests for protective orders. It has also spawned requests by both parties for
reciprocal discovery should any discovery be allowed. Such a full-blown fight over discovery is
neither authorized nor intended by the statutory scheme in harassment restraining order actions.
The court holds as a matter of law that the court has the discretion to permit discovery in
petitions for harassment under CCP 527.6 and 527.8. The court may adopt "any suitable process
or mode of proceeding" ... "which may appear most conformable to the spirit of this code."
Although there is no right to discovery in harassment proceedings, the court may, on good cause
1o
shown and after considering the possibility of prejudice, order the parties to exchange discovery
before the hearing on the merits.
The court finds that limited discovery is appropriate on the facts of this case. The parties
must produce any photographic, audio, or video recordings of the alleged incidents on February
21 and April 6, 2019. Any such recordings would be directly relevant to the claims and defenses
in this case. Production of any such recordings would impose a minimal burden on the parties.
If any party were in possession of any such recordings and decided to not present them at trial,
then the court might be inclined to draw an adverse inference. (Evid Code 412; CACI 203.) If
any party produced recordings at the trial that were not previously available to the other party,
then due process concerns with notice might suggest that the court continue the trial to permit the
21 •
other party an adequate opportunity to respond. The court emphasizes that the grant of discovery
.
herein is limited and focused: Photographic, audio or video records of conduct that forms the
basis of Petitioner's request-the parking lot incident of February 21, 2019 and the driving-
related incident of April 6, 2019.
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In contrast, the court does not require the parties to produce incident and investigation
reports, witness statements, correspondence, and police reports relating to the incidents.
Although these are certainly relevant to the case, they are not directly relevant in the same way
that the recordings of the incidents are relevant. Although reports, statements, and
correspondence might be contemporaneous with the incidents, they are not real-time recordings
of the incidents. The reports, statements, and correspondence also might raise issues with
confidentiality and that the recordings to not present those issues. The court is cautious about
requiring discovery beyond the recordings of the incidents because it might lead to burden,
expense, and delay that is contrary to the quick and truncated procedure envisioned by the
statutory scheme.
CONCLUSION
The motion is GRANTED to the extent it requests the production of photographic, audio,
or video recordings of the alleged incidents on February 21 and April 6, 2019. Each party shall
produce to the other any such evidence on or before Tuesday July 16, which is 10 days of the
hearing scheduled for Friday July 26, 2019. The motion is otherwise DENIED.
Dated: July
I,
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DECLARATION
OF
RANDEEP HOTHI
EXHIBIT
Document received by the CA 1st District Court of Appeal.
From: The Law Office of D GI Fax:
CASE No. RGDECLARATION OF RANDEEP HOTH!- EXHIIllT
AA710Page 112 To:
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FILED
ALAMEDA COUNTY
JUL l 11019~
.,.,ik~
SUPERIOR COURT OF THE STATE OF CALIFORNIA
IN AND FOR THE COUNTY OF ALAMEDA
'ESLA, et al,
Plaintiffs,
v,
No. RG19-ORDER ON MOTION TO CLARIFY
ORDER OF 7/1/19 ON REQUESTS FOR
DISCOVERY
OTHI, et al,
Defendants,
BACKGROUND
On 7/1/19, the court entered an order on the requests for discovery. On 7/11/19, Tesla
filed a motion to clarify/reconsider, On 7/11/19, Hothi filed an opposition. On 7/12/19, the
parties filed a stipulation that the court could hear the motion on the papers,
The court's order re discovery of7/1/19 stated: "The motions for discovery are
GRANTED to the extent they request the production of photographic, audio, or video recordings
of the alleged incidents on February 21 and April 16, 2019. Each party shall produce to the other
any such evidence on or before Tuesday July 16, which is IO days prior to the hearing scheduled
for Friday July 26, 2019. The motions are otherwise DENIED."
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The court now clarifies that order, noting at the outset 2 principles that underlie the courts
initial order:
1. The court holds as a matter of law that there is no right to discovery in petitions
for harassment under CCP 527.6 and 527 .8, but that it has the discretion to order
discovery in the appropriate case.
2. The court's discovery order is limited and focused.
With these principles in mind, the court offers the following guidan.ce.
VIDEO RECORDINGS
The order of 7/1/ l 9 required the production of photographic, audio, or video recordings
of the alleged incidents on February 21 and April I 6, 2019. This includes only those video
recordings relevant to the conduct of respondent or the movement of his vehicle for either of the
incidents. If, as Hothi asserts, there were eight integrated cameras on the vehicle on April 16,
then the responsive recordings will include video relevant to the conduct of respondent or the
movement of his vehicle from any of the eight cameras. Prior to the hearing, the court will
review any video recordings in camera to confirm their relevance.
CELL PHONE PHOTOGRAPHY
The order of 7/1/19 includes recordings from official Tesla recording devices and also
includes recordings from any cellphone or personal re-cording devices. A recording prepared by
a Tesla employee in the course of the work day for work related purposes is a Tesla document
even if it is recorded on the employee's personal phone. By analogy, voicemails, e-mails, and
text messages relating to city business that are kept in personal phone, e-mail, or text message
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accounts can be public records under the Public Records Act. (City ofSan Jose v. Superior
Court (2017) 2 Cal.5 th 608.) The same limitation applies to the order herein as set forth for video
recordings: Cell phone photography re.Jevant to the conduct of respondent or the movement of
his vehicle for either of the incidents. Prior to the hearing, the court will review any cell phone
photography in camera to confirm their relevance.
THE AUDIO ON 4/16/19.
Tesla states it has 40 minutes of audio from the inside of the car on 4/16/19 from before,
during, and after the alleged incident with Hothi. Tesla asserts that th<1 audio contains
confidential business information. Based on these initial representations, the court cannot
conclude whether the audio recording is relevant.
Therefore, Tesla must produce the audio for the time frame 30 seconds before the
occupants were first aware that Hothi was following or that he was within approximately meters of the vehicle until 30 seconds after IIothi was, for the last time, more than approximately
50 meters from the vehicle. This will limit the audio to the relevant time period. If Tesla
introduces evidence of what the occupants of the vehicle said, heard, or felt outside this time
frame, then the scope ofrelevance will expand accordingly. Prior to the hearing, the court will
review any audio recordings in camera to confirm their relevance.
If Tesla asserts that audio information during the relevant time period contains
confidential business information, then Tesla must make a more narrowly focused motion
supported by evidenee.
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01/11/20211:13 PM
PROTECTIVE ORDER.
The court ORDERS that both sides must keep the discovery information confidential and
may disclose it only ifit is presented to the court at the hearing on Tesla's petition for a
restraining order, Hothi stipulated lo this protective order. (Oppo at 5:2,4.)
The court does not address or decide whether any of the photographic, audio, or video
recordings of the alleged incidents on February 21 and April 16, 2019, will be sealed or
otherwise kept confidential if they are filed or submitted into evidence and a party files a motion
to seal under CRC 2.550.
to
A motion to seal under C.R.C. 2.550 is different from most motions because the
"opposition" is not really the opposing party, but the people of the State of Califomia and their
interest in an open and transparent judicial system. C.R,C. 2,550(c) states, "Unless
confidentiality is required by law, court records are presumed to be open." (See also NBC
Subsidiary (KNBC-TV), Inc, v. SuperiorCourt (1999) 20 Cal. 4th 1178, 1216-1217; In re
Marriage ofNicholas (2010) 186 Cal.App.4th 1566, 1575-1575.) In reviewing a motion to
seal, the court starts with the "strong presumption ... in favor of public aecess to court records in
ordinary civil trials." (In re Marriage qfNicholas, 186 Cal.App.4th at 1575.) The party seeking
to seal a doeument in a court file must overcome that "strong presumption" by presenting
declarations that contain fa.ct sutlicient to justify the sealing. (C.R.C. 2.551(b)(l).) Even in the
absence of any opposition evidence or argument, the Court has an obligation to review the
motion and seal only those documents that meet the requirements of C.R.C. 2.550( d).
Dated: July LÂ¥,"
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DECLARATION
OF
RANDEEP HOTHI
EXHIBIT
Document received by the CA 1st District Court of Appeal.
From: The Law Office of D GI Fax:
CASE No. RGDECLARATION OF RANDEEP HOTH!- EXHIIllT
AA715Page 117 To:
Fax: (510) 267-
Page: 110 of
01/11/20211:13 PM
Document received by the CA 1st District Court of Appeal.
From: The Law Office of D GI Fax:
AA716Page 118 To:
Fax: (510) 267-
Page: 111 of
01/11/20211:13 PM
DECLARATION
OF
RANDEEP HOTHI
EXHIBIT
Document received by the CA 1st District Court of Appeal.
From: The Law Office of D GI Fax:
CASE No. RGDECLARATION OF RANDEEP HOTH!- EXHIIllT
AA717Page 119 To:
From: The Law Office of D GI Fax:
Fax: (510) 267-
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POS-D.
CA 9ll0,:
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ENDORSED
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FlLED
ALAMEDA COUNTY
R\,;'.~pGndcm R:imker) Ho1hi
COURT OF CALIFORNIA. COUNTY OF
Alameda
Anrndt>r Street
.sa·R
MAY - l
ll,1vward, CA
as,wc,""'!k1,11:ml Hall of Justice
P!cTfftONE-RiPU\INTIFF: Tesla. !l'ic""'_=="------------
OFTilESUPERIOR COURT
ctr1 .q;,,:0:rr :0::is.
R.e:lPONDE,tmDEf'ENIJl,NTRa:1rlecp
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ALIClA ll!Sf'INQili6h¥
Hothi
PROOF OF SERVICE BY FIRST-CLASS MAIL-CIVIL
RGl
0iit:! not a party to this action. tam a resident bf or employed in the courny where ihe mailing
:2, My residence or busineS$ address is:
34.5 Grove Streel
San Francisco, CA 3. On (dete):ll/l mailed from
the followi11g document• (sp,ictf)1J:
frnnClsco, CA
Requestto Continue Coutt!foming with Amidunent
Judicial Council Form \VV -116 Order on Request to Continue Hearing
Judicial Council
1.VV-
Tho documMts are listed in tho Attachment to Proof of Service by F1rst-C/ass Mail-Civil (Uocun,cnts Served)
(li:lrm POS-030(0)).
4, I served !he documents by nncfosir,n
in an nnvnlnr,eand
one):
a.
depositing the sealed envelope with the United Stales Postal Service with the postage fully prepaid
b.
placing the envelope tor collection and mailing tallowing our ordinary business practices. I om 1e!ldily fAmiliar with this
ousinc>ss"s practice nn11,,nfir1<1and pm,::essing correspondence for mailing. On
day that correspondence ·,s
placed lot collection and mailing, it is deposited in the ordir1ary course of busine,;sv.lh the United States Poslal Service in
a sealed envelope wi!h postage fully prepaid.
5, The envelope was addressed aod mailed as follows:
a. Name of person serve
b. Address of person served:
Sideman & Bancroft LLP
One Embarcadero Center, 22nd Floor
San Francisco, CA The name and address of each person to whom I mailed the oocvmenls is listed in the Attachment to Proof of.Service
by First-Class Mai/....Civil (Persons Setved) {POS,030(P)).
I declare under penalty of perjury underthe laws oftho State of California tl1at the foregoing is true and correct.
Daie,5/1/
//.
•
Foot'! At1Pt!7•qd r« Opl1ona1 U,,.;e
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PQS-030 [NewJ.mw,1ry t2005j
PROOF OF SERVICE BY FIRST-CLASS MAIL-CIVIL
(Proof of Service)
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Document received by the CA 1st District Court of Appeal.
(Do not use this Proof of Service to show service of a Summons and Complaint.)
! :r:m ever 4S
took place.Page 120 From: The Law Office of D GI Fax:
To:
Fax: (510) 267-
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01/11/20211:13 PM
_____________ _____________________________
Casa Number:
RG'l901.
.,,,
Document received by the CA 1st District Court of Appeal.
name
AA719Page 121 To:
From: The Law Office of D GI Fax:
D...GlLL SF'ERLE!:-.!,
Fax: (510) 267-
Page: 114 of
01/11/20211:13 PM
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L" Vo/
OF !J. GE SPE;c:1.:::1,,3.:5 Grove Streei
Son Francisco, CA
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,
SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF ALAMEDA
()
Tesla, :nc.,
ll
Attachment 3(b)( 4) fo Ch- i 15 Request
to Continue Hearing
V.
l -~~
ring
Randcep HothL
Respondent.
i
Date: 5/7/Time: l :30 pm
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AA
Document received by the CA 1st District Court of Appeal.
Case No. RG19015770Page 122 To:
From: The Law Office of D GI Fax:
Fax: (510) 267-
Page: 115 of
01/11/20211:13 PM
Mr. f-;othi is o d1izen joL,rnci!is' whose 1·eseorch 011d do1a nave Ievea:eo
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ii
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by buslrH?ss reporters o-nd reHe.•d upon by
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a v1na-s· pub!!c. foiiO\Ntng. AT Tn.e rnT16' or 1ne:
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_int-o _ques·tion
7 !! e,:v-enh In questron, Hothi \Nc:is· gatf·,erlng info1~n1otion colct,,1loted to :Coil
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8 _lj Tesi·a ,s e>::i'rdvoganr cloirns about
"'j
1"1 ol·;,ia:r,ing i1s ex porie 1ernporo1y rest,.aining order (wi"h on object fdiure io
i
Selfm,Driving~· and o :•robo taxt -~ies'f.
give notice to Homi, dernite ktiOWing he could oe readily reacheci
(>'l
Twiiter), Tesla
'i,os poir1eti o 'urid piclure of Ho:hi as a dangerovs individual guiity of stolklng,
narassmeni, and trespass, whose activ:;ies consiitute "'ocrual and threatened
j
14 1.v:oience:· None of ti,ese thi:,os is ii"ue. As evidence in Tesla's oossession will show,
.
J
15 H
!i Mr. Hothi endangered no one. ihreak':red no one, and harassed no one.
'I
16 ;ji!)
1 csla 1s accusations r1ere fall inlo o long and disturbing pattern of using lies
l7 !!
18 and intimida+ion in on effori to silence iis critics. This matter plainly has ramific:atior1s
for t,eyond :rie ,nd:vidua! Respondent ond ti,erefore deserves a tong-form
l
parties shoL'id hove the opportur,ity to toke d•sc:overy in odvc11,ce of the nearing.
I
cause fo'r the: requested
Ho'fhi l~Jrovldes i'he fof!ov¥.i11q~ i'nforn1ation to establish aood
-
i
2j : continuance, cilscovery, and long--form evidenliory hearing.
i
1.:;: j - - - - - - - - - - - - - - - - - - - - - - -
_,,, l CaL2d 355, interpreting the Discovery ,A. ct cit. l .957)_
26 i d'scovery p1ovisiors in 1he Civil Discov,"ry Aci or
1-=
Ccd!fornia courts hove r(~!i"erc..r_tecJ !ho!
·1986 (CCP 2016-2036) ond tl1e Civil
!L are i'C)- b~,~ i!'t.>eral!y consirued ;n
i'e!J1oc.1;-:s
v,,hich
Ji D!scovei·y Act {CCP 2016.0 l 0-·2036:050),
/'?Q1 l) ·1··1,;;.,olecs
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usual bounds--.of o re-strbfning o·rcJer, the _Couri' rnust undersi'ond what roie Hoi'h! plays.
hothi is on -ou)·spokE:n cfrfic of Tesla. He ·is on ocOdemlC· trained lr: field research c1~d
currently con1pleting a Ph.D. !n !in9uisfic oni'hroi:.)o'!o-gy, He has applied ol::iservo"fion
ana dota-gaihei-ing techniques :oarned in nis studies to uncovering informaflon
ll
about Tesio, especially information Tesla hos misrep;esen 1ed fo the pubiic. i..,e is poi-of ,he TSLAQ phenomenon which is a type of crowd sourcing of !nior:11ation relevant
to Tesla. [See Russ Mitchell, "T!,e crowd-sm,rced, socio! media swarm that is bett:ng
Tesia will crosti and burr.," LA Times (on line Apr. 12, 20"19, and atroched hereto as
II\
Exhibit A)).
l
Directly relevant lo this mo1te,, Tesla 11,is rnonth n,ode extraordiriory claims
about 7he supposed "oulonor,ous drlving·• cc1pobi!ities of its vehicles. Teslc has
promised one rniilion · robo taxi,;" on ihe road by nexl year, c.cipabie of '' full 1eif·
drlv!ng.p {See .Russ t\f,itchell, ;·•in o -bind _ ~J\usk !-iopes autonon1ous Tes!a taxis. win dfr 1e
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Exhibit B)). Tesla relies or
car purchcises. if those statements ore false, as many believe i'hey ore, 11,en there
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AA
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observe and briefly reCOi'd the car's oct;ons. Tl,i; iype of observc+io:, is essential 1o
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Petitioner's History of lying and Intimidation of Critics
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critics, and oopreciote how Tesla's tactics alfect ihe puiJlic's right ro knov-1 ooout
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Tes:a as a publicly traded company.
First the deception. Tesla's most farnous fraud occurred !est August when
~es:a's CEO, Elcn Musk, iweeied 'o his
:n million Twitter fol!owers during tradii·ig hours
tha1 he hod ''funding secured" to rake Tesla private at a stock pr'ce well above !he
trading price. The siock price in,mediate,y and spec+ocuiorly soared. However,
Musk s claim was a lie. Ti,e SEC brougfit a 1Ob-5 aciion a gains: Musk that r0su:ted
[
a $20 miliio:1 fine to Musk (end c $20 minion rine 1o Tesla for· failure to supervise Musk).
{SGe Exhibff·C hereto), As part of 'the consent judgment, r/,vsk agreed 'iho'l r-1e· cari
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Tesla's cur1·sr1t clai,-ns obour aulonomous driving because Tes!a has o imck record
__ ::,
o; cieceiv;riQ ,:·e pvb!ic abovt 'ls rn-coiled ·'Fuli Sel:~Drivini;;t for
~so) caDob;li\ies. In
2016, Tesla r-nade Hre clalrns obout fhe imrrdnence O'f 'Its FSD ccpab!'.ii'ies ti;ot ore
AA
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fs what th0y me o;ternp1ing here, Respondent offers a few examples here, bu+ ;her·e
or!", countiess others.
i
1,
Whrm a 20,yem veteran photogmp!1er for the Reno Gazette Journal
tried +o phoiogmph :t·,e Tesla gigaiociory in Nevada. security guards ro,Jghed i,irn
up and claimed he hod tried to r;;n then1 over. (Reno Gazette Journal's ,owyer "sent
a let:er in resoonse [lo Tesla's doims] stot!ng 1t1e two guards rammed the Jeep and
s,·nosiled the window wi!h a rock be 1ore cvt1!ng [!he photographer] out o~ h•s seat
20 ,
· vv[i'h a-knife/ .c:rogging hlrn out of the v·ehicfe and shoving hirn to the ground."} {See
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charges clroopec1/ Reno Gozeffe Journal {on iine jon. 41 20181 and cJttoche!·d
_.,
hereio as Exhibit F)).
2.
-
Nhe•1 Tesio whist!eb!Gwer Martin Tripo
informed media ancJ reauio1ors
.
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AA
Document received by the CA 1st District Court of Appeal.
gone to exlroord:nory effo(s lo inti,nida1e 1hose who seek 1o report ,he iru1r1, wi1,c!\
llPage 126 From: The Law Office of D GI Fax:
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tilat ernploy,,es were f,now;1,g1y selling defeci!ve ca,s, Tesio den~oied an::i then flrecJ
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When a ferna'le engineer a!lege-d se,xual' hara.ssrnent at Tes'lo, T"esia
4.
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fired r1er. (See, San; Levin, j'Teslo· fire.s fernale engineer who aireged sexual
I:ne June L 2018. attached hereto as Exhibit JI),
harassment'' LA Times Ion
.
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Good Cause
Bc1sed on the above facts, there exis1s good cause to order a iong-form
l 8 ovi::ientiary hearing with sufficlenl +ime in o::ivance to conduct discovery for :he
following reasons:
J
L
The negative in1pact on iI11s R_e-spondent is far greater than in the
typical restro.inltlg ordei· actior. The sirnple o.ct o,f fiEr1·g of the pefit1on outed (or
doxxed) f~espo!7dent. A nL1-:-•i.)er of Tesla rcmat:cs have e-maiied Respondent's
24 , clean, departrneni choir. 011d thesis advisor commanding ihot ihe university expel
l
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T11e inflamma+ory accusations n,ode by Tesla in ihis
from
-· III! Mr. Holri
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. his Ph.J. oroorom.
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jj hign,,•proff.!e prOC6'•2dinQ are certain· to hov.e o orofound effecl on ResrJondenf·s
-6-
AA
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j()Page 127 To:
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1p._t:1,
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and investors wi,o rely on ci'.izen journalists ar'.d investigo :ors
1r,i,rn:dc1ies
those who ,eek io thv,ari its eiimis
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corning to light, and
deprive the pubiic oi importani
of her methods, the 11:;•ss likely people v-lili be wiiiing 1o put 1!,eir necl
or:d disserninole rruth.
Tesla alone
holds
n1oteria!s :hai Responden: believes include
!4 e~culpotory evidence. The 7 esla ts::s1 c:ar described in Paragraph 3- of A:tochrneni A
to Christine L.eslie's Declaration Supprn•ting the Petition hod two cameros mounted
n
on it. A!so, :he car itself hos eight integrated cameras, and Tesla has ciain,ed those
i
corneros are a crucial po!'! of the FSD hardware, ond how Ji~e cor stores and
tronsmits 1,1ossive 1:imounts of data bock to heoclquorters for analysis. Sureiy, 111:s cm,
:,o
trans:--niHed s~ch do~a. Respondent 1:--:clntains he d1d net cpproe1ch The ·test· ca; .1n
ihe records from the test car to support llis testimony. Sin;iiariy. Responden: be!leves
25 i ·r,af
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,or ;ne raasons sei ror:n ooov0, e;esponoen, reques1 mm 1ne C oun:.
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parHes i',o iakc discovery pr'!Oi to the hc·aring: and
2) sc;1edule.a !ong-'forrn evicten+iary hearing on the- Petii'iorr.
Respectfully Subrn!Hed,
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13 {!,.
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Document received by the CA 1st District Court of Appeal.
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DECLARATION
OF
RANDEEP HOTHI
EXHIBIT
Document received by the CA 1st District Court of Appeal.
From: The Law Office of D GI Fax:
CASE No. RGI
DECLARATION OF RANDEEP HOTH! - EXHIIllT
AA728Page 130 From: The Law Office of D GI Fax:
To:
Fax: (510) 267-
Mail - u11.1 ~perlem - outlook
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Page: 123 of
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https :II oullook,othcc ,comlma1II c1ceplmk?vcrs1on=2U2U l :Z:Z~l/U I ,03 ,,,
@ Delete
(S) Junk
Block
RE: Tesla, Inc. v Randeep Hothi
AJ
You replied on Tue 5/14/2019 10:05 AM
Alinder, Zachary J.
Fri 5/10/2019 5:43 PM
')
•
To: Gill Sperlein
Cc: Liu, Ellen P.
We have reviewed the Court's order continuing the hearing at your client's request, as well as your
May 2nd letter and requested discovery, As an initial matter, the Court noted in its order that "ll]his
case is a summary proceeding and there is normally no opportunity for discovery," Consistent with
the Court's order. we do not believe discovery is appropriate in this case, and we arc not aware of any
basis under the law for your discovery requests. Indeed, the only relevant authorities that we have
found con/inn that there is no discovery in ,uch summary procc,.,ding,, See, e,1;,, Tlwmas v.
Quintero, 126 CaL App, 4th 635,650 (2005). If yon can provide any legal authority lo support
discovery requests in this context, however, we would be happy to consider ii. We are also happy to
discuss further at the hearing currently scheduled for May 21 ' t ,
Sincerely yours,
Zac
From: Gill Sperlein [mailto:gill@sperleinlaw.com]
Sent: Wednesday, May 8, 2019 4:54 PM
To: Alinder, Zachary J.
Cc: Liu, Ellen P,
Subject: [EXTERNAL] RE: Tesla, Inc. v Randeep Hothi
Zac
please feel free to call me Gill. Nice to meet you Ellen,
Thank you for the information below,
Although I doubt this will come into play here, I am notifying all opposition counsel in my current
litigation cases that i will he unavailahle for appearances for most of June and a few days in July, A
formal nc,tice is ,mached.
Gill
0, GILL Si'ERLEIN
~;~i .Q'rOV~ '.Sh£J~i,?t
sari tror.ci;cc,, cti µ1i15,l04Ml~ 14i5d04.Mgill%~!'$f.:f;a,-l~nk:1w, corn
Document received by the CA 1st District Court of Appeal.
Dear Gill:
U'rom: Alinder, Zachary J,
I of l
AA
l/7/21, 8:48 PMPage 131 To:
Fax: (510) 267-
Page: 124 of
01/11/20211:13 PM
DECLARATION
OF
RANDEEP HOTHI
EXHIBIT
Document received by the CA 1st District Court of Appeal.
From: The Law Office of D GI Fax:
CASE No. RG
DECLARATION OF RANDEEP HOTH! - EXHIIllT
AA730Page 132 From: The Law Office of D GI Fax:
•
To:
Fax: (510) 267-
•
Page 125 of 15~11 01/11/20211:13 PM
22186954.
1 ZACHARY J. ALINDER (State Bar No. 209009)
E-Mail:
zalinder@;ideman.com
2 ELLEN P. LIU (State Bar No. 280459)
E-Mail:
eliu@sideman.com
. 3 SIDEMAN & BANCROFT LLP
One Embarcadero Center, Twenty-Second Floor
4 San Francisco, California 94111-3 Telephone: (415) 392-5 Facsimile:
(415) 392-0827.
FILED
ALAMEDA COUNTY
MAY 21
~s~
6 Attorneys for Petitioner
TESLA,INC.
SUPERIOR COURT OF THE S_T ATE OF CALIFORNIA
COUNTY OF ALAMEDA
11 TESLA, INC.,
Petitioner,
v.
14 RANDEEP HOTHI,
Respondent.
-
({)
20.
REPLY MEMORANDUM IN SUPPORT
OF RESTRAINING ORDER RE
RANDEEP HOTHI
Date: May 21, Time: 1:30 p.m.
Dept.:
Document received by the CA 1st District Court of Appeal.
Case No. RG
AA731 Case No. RG REPLY MEMORANDUM IN SUPPORT OF RESTRAINING ORDERPage 133 •
To:
From: The Law Office of D GI Fax:
Fax: (510) 267-
I.
•
Page: 126 of
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INTRODUCTION
The Response filed by Respondent Randeep Hothi ("Mr. Hothi" or "Respondent") on May
3 17, 2019 further confirms that the Court should convert the temporary restraining order ("tRO")
4 issued on April 19, 2019 into a more permanent restraining order. The Response does not, and
5 cannot, justify Mr. Hothi's dangerous and threatening conduct, nor does it explain why Mr. Hothi
6 continued making threats even after the Court issued the TRO against him:
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skabooshka @skabooshka · Apr I will not rest. This is my promise.
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Case No. RG19015770Page 134 From: The Law Office of D GI Fax:
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Page: 127 of
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Mr. Hothi cannot dispute that he has trespassed at the Tesla factory numerous times, struck
2 a Tesla employee with his car at the factory, or that he pursued a car full of Tesla employees for
3 35 minutes on the highway. He has also evaded efforts by the Fremont police to serve him with a
4 no-trespass warning for the Tesla factory, and has refused to .stipulate to a stay-away order from
5 the two Tesla facilities in question. Mr. Hothi's messaging, including the image in his tweet,.
6 speak for themselves. In short, Mr. Hothi is dangerous and "will not rest" unless restrained.
The Court should reject Mr. Hothi's arguments for at least four reasons.
First, Mr. Hothi shows no contrition for putting innocent people in a dangerous and
9 frightening situation. Mr. Hothi admits that he is an avid Tesla short seller with financial and ·
10 reputational reasons to want to make Tesla and its products fail. His behavior since the TRO
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11 confirms his intent to continue, or even escalate, the same threatening and malicious behavior.
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Second, the Response confirms the Tesla employees' account that Mr. Hothi's threatening
13 driving behavior put them in serious fear for their safety. Mr. Hothi admits that he followed their
14 vehicle from Fremont to the Bay Bridge, and even followed them onto Treasure Island as they
15 .tried to evade him. Mr. Hothi does not deny that he took such actions, but disturbingly
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17 the public at risk, and the conduct amounts to multiple violations of the California Vehicle Code.
18 And Mr. Hothi. cannot deny that his driving made the Tesla employees fearful enough to call the
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19 police-even though they had no prior knowledge of Mr. Hothi.
Third, Mr. Hothi's Response shows that he is not credible and is willing to mislead the
21 Court to avoid entry of the restraining order. With regard to the February incident in the Tesla
22 parking lot, _Mr. Hothi initially told the Fremont police was that he had randomly chosen that
23 parking lot to take a nap-clearly untrue, given Mr. Hothi's obsession with Tesla, his history of
24 trespassing, and the fact that he lives just a few minutes away Months later, the Response now
25 spins a completely different story, in which Mr. Hothi claims he was at the factory to visit the
Document received by the CA 1st District Court of Appeal.
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26 Tesla showroom. But that is equally implausible: the showroom parking lot is roughly a third of a
27 mile, and a seven minute walk, from where Mr. Hothi was. parked in the employee parking lot.
28 Mr. Hothi-a repeat trespasser who previously posted pictures of the "employee lot" to his Twitter
AA733 Case No. RGREPLY MEMORANDUM IN SUPPORT OF RESTRAINING ORDERPage 135 From: The Law Office of D GI Fax:
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1 account-knew this well.
. Fourth, Mr. Hothi's claims to being a "journalisr' are not well taken. The First
3 Amendment is no justification for using your car to endanger and intimidate people, and it does
4 not protect Mr. Hothi here:
In summary, Mr. Hothi's Response further confirms the need to restrain him. Tesla
6 requests that the TRO now be extended for the maximum 3-year period allowed in this
7 proceeding, modified only to remove Mr. Temmerman, who is no longer employed at Tesla.
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ARGUMENT
Mr. Hothi's Lack of Contrition Establishes a Reasonable Probability that His
Wrongful Acts Will Be Repeated in the Future
I); or
Having put three Tesla employees in fear of their safety and having clipped another with
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17 which has such a vested interest in Mr. Hothl that it has crowd-funded over $116,000 to defend
18 him in this case. See Declaration of Zachary J. Alinder in Support, filed concurrently with this
19 Reply, ("Alinder Deel."), 12; see also Mr. Hothi's Declaration in Support of Response at 112-3;
20 see also Mr. Hothi's May 1, 2019 Request to Continue Court Hearing, Ex. A. Mr. Hothl is no
21 independent journalist at all, but seeks to use his "reporting" to further his personal financial
22 interests and gain notoriety with his "followers." See Mr. Hothi's Declaration in Support of
23 Response at 12. Mr. Hothi's tweets make this all too clear:
Document received by the CA 1st District Court of Appeal.
II.
AA734 Case No. RGlREPLY MEMORANDUM IN SUPPORT OF RESTRAINING ORDERPage 136 From: The Law Office of D GI Fax:
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18 further amped up his threats, publicly tweeting an apocalyptic image
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19 rest." Alinder Deel:,, 3. Mr. Hothi has also refused to accept service of a police-issued no-·
20 trespass warning, and has refused to stipulate to stay away from the two Tesla facilities at issue.
In short, Mr. Hothi's post-TRO conduct and utter lack of remorse establish a high
22 probability that, unless further restrained by this Court, Mr. Hothi will continue his campaign of
23 harassment, threats, and trespassing against Tesla's employees.
B.
Even while trying to explain his actions, Mr. Hothi's Response admits all of the facts
Mr. Hothi's Response Confirms the Need for an Injunction
Document received by the CA 1st District Court of Appeal.
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26 needed to rule in Tesla's favor. As to the Fremont factory incident in February 2019, Mr. Hothi
27 says he does not believe that he hit a Tesla employee with his car, but he cannot dispute that he did
28 so, nor does he credibly dispute that he was trying to escape the parking lot after he was caught
AA
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1 trespassing in the act. He also does not dispute that he has trespassed at the factory numerous
2 times, in violation of posted signs, and even planted video cameras on Tesla:s private property.
3 See generally Response; see also Supplemental Declaration of Christine Leslie in Support
4 ("Supplemental Deel."), filed concurrently with this Reply, ,3 & Ex. A. Tesla has every reason to
5 believe Mr. Hothi will return, endangering any Tesla employee who then confronts him.
As to the April 2019 incident, Mr. Hothi concedes that he followed the Tesla vehicle from
7 Fremont to Treasure Island, going through the bridge toll plaza, and even exiting on Treasure
8 Island to follow the Tesla crew fleeing him. See Hothi Deel. at, 8. Mr. Hothi further admits that,
9 while driving on a public highway, he recorded the car's actions using his cellphone, id., and he
10 does not credibly deny making reckless maneuvers in following the Tesla car, see Declarations of
12 Order. In the process, he endangered Tesla's employees and the public and committed multiple
. 13 violations of California law. See CVC § 23123.5 (prohibiting the holding of a cell phone while
14 driving); CVC § 4008(a) (prohibiting reckless driving "with the intent to capture any type of
15 visual image, sound recording, or other physical impression of another person for a commercial
16 purpose.").· And most importantly, Mr. Hothi cannot deny that his harassing pursuit made Tesla's
17 employees fear for their safety, despite having no prior knowledge of Mr. Hothi. See April 19 .
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18 Tesla Declarations in Support of Petition.
This incident is part of a pattern of increasingly escalating dangerous conduct by Mr.
20 Hothi. As shown in his Twitter feed, Mr. Hothi has routinely staked out the Tesla employee and
21 contractor parking lots since the fall of 2018. See Alinder Deel.,, s & Ex. A. 1 Mr. Hothi's .
22 conduct has only escalated from there, with Mr. Hothi planting portable cameras on Tesla private
23 property in late 2018 (which he does not deny), and then clipping a uniformed Tesla security
24 officer with his car while exiting the Tesla employee parking lot in February 20 I9. See April
Document received by the CA 1st District Court of Appeal.
11 Cross, McDonald, and Temmerman in Support of Petition for Workplace Violence Restraining
As set forth in more detail in the separately filed Request for Judicial Notice, Tesla requests that
27 the Court judicially notice these tweets and related public website postings, set forth in the Alinder
Declaration, filed concurrently with this Reply.
AA
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1 Leslie Declaration, pp. 1-3; see also April 19 James Declaration in Support of Petition at p. 1.
2 Then, his conduct went even further over the line as. he trailed and recorded a Tesla vehicle for
3 over a half hour in April, putting them in serious fear. See Cross, Temmerman, and McDonald
4 Declarations in Support of Petition. Court intervention is needed before Mr. Hothi causes even
5 graver harm.
Finally, whether Mr. Hothi intentionally or knowingly communicated verbal threats is
7 irrelevant. See Response to Petition, Attachment 11 at p. 10:4-16.; see City ofSan Jose v. Garbett,
8 supra, 190 Cal. App. 4th at 538, 118 (subjective intent not required for conduct to be deemed a
9 credible threat; whether threat is conveyed by conduct or pure speech is irrelevant).· Using his car
10 to intimidate or endanger people is more than sufficient, and Mr. Hothi needs to be restrained from
C.
Mr. Hothi's Response also demonstrates that he is willing to lie to avoid entry of an
Mr. Hothi Has Misled Both the Police and the Court
14 injunction. 2 As to the incident where he clipped a Tesla employee with his car, Mr. Hothi initially
15 told police that he had parked in a random parking lot intending to take a nap, even though he
16 lived just a few minutes away. Hothi Deel., Ex. A, 2/27/19 Report at p. 3. In his May 17th
17 Response, Mr. Hothi tells a completely new story, swearing under oath that he was onsite to visit
-
18 the Tesla showroom, which is adjacent to the factory. Hothi Deel. at, 4 But that also is not
(J)
19 credible. When he was confronted by Tesla sec~ity personnel, Mr. Hothi was parked near the
20 northern edge of the employee parking lot, approximately 0.3 miles away from the showroom and
21 its designated customer parking spots. See Supplemental Deel.,, 3 & E)(. A. Mr. Hothi does not
'
22 deny having trespassed at the factory on numerous prior occasions, and his tweets show that he
23 knew exactly where the employee parking lots are. See Alinder Deel:,, 5 & Ex. A. And by this
Mr. Hothi's hearsay objection (see Response to Petition at 6: 12-13) should be overrruled. See
26 Kaiser Found. Hosps. v. Wilson, 201 Cal. App. 4th 550,557, 133 Cal. Rptr. 3d 830,835 (2011)
("The plain language of this provision suggests that the Legislature intended to permit a trial court
27 to consider all relevant evidence, including hearsay evidence, when deciding whether to issue an
injunction to prevent workplace violence pursuant to section 527.8.").
AA
Document received by the CA 1st District Court of Appeal.
11 continuing this behavior or escalating it further.
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1 time, Tesla had installed "No Trespassing" signs at all publicly-accessible parking lot entrances
2 and on all perimeter fences around the Fremont factory. See Supplemental Deel., 13.
Mr. Hothi' s Response thus shows that he is not credible and is willing to mislead the Court
4 to avoid a court order forbidding him from trespassing at Tesla's facilities.
D.
There Is a High Likelihood of Irreparable Harm
There is a high likelihood of substantial and irreparable harm if Mr. Hothi is not
7 permanently restrained. Mr. Hothi has now threatened the safety of both the public and Tesla's
8 employees, in the pursuit of either his own personal financial gain and/or notoriety as a Tesla short
9 seller. That is sufficient by itself to extend the injunction.
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15 to reach that goal. See Alinder Deel., 14. Mr. Hothi's past conduct and threats of future conduct,
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18 ·illegal conduct. As described above, Mr. Hothi has misled the police and now the Court in an
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Further, Mr. Hothi has made clear in every way possible that he intends to continue his
19 effort to hide his true reasons for trespassing at thefactory at the time of the February 20 incident. In addition, as detailed in the police report, Mr. Hothi actively avoided efforts by the
21 Fremont police to serve him with a trespass warning notice, refusing to meet and stating he was
22 "out of the area." Hothi Deel., Ex. A, 4/10/19 Supplement No. 2 to Police Report at p. 1. That
23 behavior is not consistent with a person whose actions were unintentional. It also is not consistent
24 with someone who intends to comply with the Fremont police's warning notice.
Prior to this hearing, Tesla also requested through counsel that Mr. Hothi stipulate to a
Document received by the CA 1st District Court of Appeal.
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26 permanent stay away order from the Tesla facilities at issue here. Mr. Hothi refused, further ·
27 confirming that he intends to continue his course of conduct to endanger and threaten Tesla's
28 employees. See Alinder Deel., 17.
AA738 _
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E.
While Mr. Hothi calls himself as a "journalist," rather than a Tesla short seller, that
The First Amendment ls Not a License to Break the Law
3 distinction is irrelevant to the questions here. Mr. Hothi has endangered people through this .
4 conduct. Even if Mr. Hothi were a journalist, "[t]he First Amendment has never been construed to
5 accord newsmen immunity from torts or crimes committed during the course of newsgathering.
6 The First Amendment is not a license to trespass, to steal, or to intrude by electronic means into
7 the precincts of another's home or office." Dietemann v. Time, Inc., 449 F.2d 245,249 (9th Cir.
8 1971); see also Raefv. Appellate Div. ofSuperior Court, 240 Cal. App. 4th 1112, 1123, 193 Cal.
9 11ptr. 3d 159, 166 (2015) ("The First Amendment does not immunize the press from 'the
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10 enforcement of civil or criminal statutes of general applicability."') .
Further, the proposed restraining order does not limit Mr. Hothi's freedom of speech in any
12 way. The restraining order requires him to stay away from two Tesla facilities, where the
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13 threatened employees and other Tesla employees are present. Th~t does not impinge on his right
14 to free speech, but rather prevents him from further endangering Tesla's employees, whether
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F.
Mr. Hothi draws the Court's attention to alleged harm he has suffered as a result of his
The Privacy Concerns Raised by Mr. Hothi Affect the Victims Much More
(/)
20 own illegal conduct, and blames Tesla for initiating this action. But Mr. Hothi is no victim, and
21 his purported concerns are no defense against Tesla's petition. Meanwhile, Mr. Hothi and his
22 followers. have engaged in "doxing" related to witnesses and lawyers on
the Tesla side of this
.
23 matter. See Alinder Deel., 13. This appears to be a coordinated attempt by Mr. Hothi and his
24 followers to further intimidate and harass the victims of Mr. Hothi's conduct. Tesla welcomes the
25 Court's guidance on how best to address these privacy concerns.
III.
Document received by the CA 1st District Court of Appeal.
Q_
CONCLUSION
For the foregoing reasons, the Court should grant Tesla's request for a three-year
28 restraining order against Mr. Hothi.
AA739 Case No. RGlREPLY MEMORANDUM IN SUPPORT OF RESTRAINING ORDERPage 141 From: The Law Office of D GI Fax:
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SIDEMAN & BANCROFT LLP
By:
ach~fAlinder
Attorneys for Petitioner
TESLA,INC.
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AA
Case No. RG19015770Page 142 To:
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Page: 135 of
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DECLARATION
OF
RANDEEP HOTHI
EXHIBIT
Document received by the CA 1st District Court of Appeal.
From: The Law Office of D GI Fax:
CASE No. RG
DECLARATION OF RANDEEP HOTH! - EXHIIllT
AA741Page 143 From: The Law Office of D GI Fax:
To:
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Page: 136 of
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&I
1611 TELEGRAPH AVENUE
SUITE OAKLAND, CALJFOR:-l!A
'" 415.217."" 510,759.rnarth;:i@hoersd1-illovsky.com
bo~rnch . illovsky ,com
July 19,
Re: Tesla, lnc. v. Randeep Hothi
Case No. RGDear Judge Brand:
We are in receipt of the Court's July 18, 2019 Order (the "Order"). TI1at Order clarifies
that the Court's July 1 discovery order requires Tesla to produce both video and audio
recordings related to two incidents involving Respondent Hothi's conduct on February
21 and April 16, 2019.
Tesla very much appreciates the Court's consideration of its motion. It respectfully
disagrees, however, with the Court's order requiting production of the audio recording,
particularly where other evidence amply demonstrates Hothi's conduct. While Tesla is
confident that the evidence supports the claims made in this case, Tesla has endeavored
to make clear that the audio recording contains its employees' private and personal
conversations. As described in Tesla's briefing, those conversations include personal
information and private discussions that these individuals never intended for public
consumption. Tesla's employees have already been subjected to both the conduct
described in Tesla's petition and the unwanted publicity and online harassment that
followed the filing of that petition. Production of their private conversations to Mr.
Hothi would, in Tesla's view, inflict more damage by subjecting them to an unwarranted
invasion of their privacy and further harassment. And once the audio is produced, as
the Court's Order itself suggests, little doubt remains that it will make its way into the
public domain, publicly exposing every detail of an informal conversation among
coworkers who did nothing wrong.
Tesla had hoped not to have to choose in this instance between protecting its employees'
safety and exposing them to an invasion of their privacy. The Company's necessary
course of action is now clear after the Court's Order. While Tesla believes that a
AA
Document received by the CA 1st District Court of Appeal.
Honorable Jeffrey S. Brand
Alameda County Superior Court
Hayward Hall of Justice
Department 24405 Amador Street
Hayward, CA 94544Page 144 From: The Law Office of D GI Fax:
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Hon. Jeffrey Brand
July 19, Page
restraining order against Mr. Hothi is necessary and appropriate to protect its
employees at their workplace, Tesla will redouble its efforts to protect its employees
through other means. Tesla believes it has given Mr. Hothi clear notice not to enter its
property and that Tesla will take appropriate action in the future to protect its
employees.
Tesla hereby withdraws the petition and will file the appropriate papers with the Clerk
of the Court.
Respectfully submitted,
cc: D. Gill Sperlein, Esq. (counsel for Respondent)
AA
Document received by the CA 1st District Court of Appeal.
~
Martha Boersch
Eugene IllovskyPage 145 To:
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DECLARATION
OF
RANDEEP HOTHI
EXHIBIT
Document received by the CA 1st District Court of Appeal.
From: The Law Office of D GI Fax:
CASE No. RG
DECLARATION OF RANDEEP HOTH! - EXHIIllT
AA744Page 146 To:
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I BOERSCH & ILLOVSKY LLP
Martha Boersch (State Bar No. I26569)
2 martha@boersch-iHovsky.com
Eugene lllovsky (State Bar No. 117892)
euge11e@boersch-illovsky.com
4 16 l l Telegraph Ave., Ste. Oakland, CA 5 Telephone: (415) 500-6 Attorneys for Petitioner
7 Tesla, Inc.
SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF ALAMEDA
lO
Case No. RG190!
TESLA, INC.,
MOTION FOR CLARIFICATION OR
PARTIAL RECONSIDERATION OF JULY
1 DISCOVERY ORDER AND FOR
PROTECTIVE ORDER; DECLARATION
OF EUGENE ILLOVSKY; [PROPOSED]
PROTECTIVE ORDER
Petitioner,
v.
RANDEEP HOTHI,
Respondent
PETITIONER'S MOTION
FOR PROTECTIVE ORDER
Case No.: RGAA
Document received by the CA 1st District Court of Appeal.
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Petitioner Tesl~ Inc. ("Tesla") hereby moves the Court for clarification or partial
2 reconsideration of its July I, 2019 Order 011 Request for Discovery (the "Discovery Order") regarding
3 the production of any interior audio recording accompanying the video recording of the April 16,
4 20 l 9 incident. Tesla also moves for a protective order restricting Respondent Hothi from
5 disseminating, filing, or otherwise disclosing any audio, photo, or video recordings produced by
6 Tesla in discovery, until further order of the Court.
grounds
this motion are set forth below
7 and in the Declaration of Eugene Illovsky filed concurrently with this motion.
SUMMARY OF ARGUMENT
Tesla respectfully disagrees with the Discovery Order, but requests clarification and/or
IO reconsideration of one narrow aspect of that order. The Court granted discovery of audio,
12 confidentiality concerns. However, that is emphatically not true of the audio recording made on the
13 interior of the vehicle during the April 20!9 drive, which records verbatim some 40 minutes of
14 private conversation among three Tesla employees spanning a variety of personal, private, sensitive,
15 business-confidential, and other irrelevant topics. Tesla does not consider this audio to
a
16 "recording[] of!he incidents," orto depict the conduct that forms the basis of Tesla's petition, and
17 asks the Court to clarify that this material need not be produced.
First, the audio recording raises issues with confidentiality. Tesla's employees have already
19 been harassed online by followers of Mr. Hothi, which has resulted in stress and other consequences.
20 Tesla's employees should not be subject to a further invasion of their privacy and potential
21 harassment that would result from the public disclosure of their private conversations. In addition,
22 many aspects of the audio contain information that Tesla deems confidential and proprietary. This
23 information does not belong in the proceeding, and certainly does not belong in the hands of Mr.
24 Hothi.
Second, the "incident" that Tesla complains of are discrete instances ofHothi's conduct
26 "driving ahead
beside, and behind [three Tesla employees] and swerving dangerously close to the
27 vehicle." Petition for Workplace Violence Restraining Order at 2. The videos sufficiently
AA
PETITIONER'S MOTION
FOR PROTECTIVE ORDER
Case No.: RGl
Document received by the CA 1st District Court of Appeal.
11 photographic and video evidence based 011 its assumption that such materials would not raisePage 148 From: The Law Office of D GI Fax:
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demonstrate these episodes without the need to provide 40 minutes of Tesla employees' private,
2 confidential, and irrelevant conversations. Again, this audio should not be produced.
As to the evidence the Court has ordered Tesla to produce, Tesla requests that the Court enter
4 a strict protective order preserving the confidentiality of any recordings. Such a protective order is
5 necessary to prevent any potential farther harassment of those employees by the community of
6 virulently anti-Tesla short-sellers that tweets under the hashtag $TSLAQ. Without such a protective
7 order, Tesla is certain that its recordings will appear on line and unfairly expose its employees who
8 appear in the recordings to abusive public attacks on Twitter or in other press (or worse).
9 Furthermore, the Court should not reward Hothi with unrestricted access to, and the ability to
IO disseminate to his followers, the footage ofthe very test drive that he broke the law to obtain.
12 Court does not rule on this motion before
compliance date of July 16, 2019.
FACTUAL BACKGROUND
A. The Discovery Order
On July l, 2019, this Court issued its Discovery Order in which it correctly held that "there is
16 no right to discovery" in these proceedings, but that it "has the discretion to permit discovery."
17 (Discovery Order, p. 4). The Court granted in part and denied in part "the requests for prehearing
18 discovery," 1 but only in so for as "they request the production of photographic, audio, or video
19 recordings ofthe alleged incidents on February 21 and April 6, 2019."
Tesla had objected to Mr. Hothi's broad discovery requests and specifically objected to the
21 demand for the audio/video recordings 011 grounds that it called for "confidential/proprietary/private
22 information." Tesla further requested that any discovery allowed be protected by an order forbidding
23 the use of any material outside of the July 26 hearing and restricting the materials to attorney's eyes
24 only. Letter Brief at IO (June 3, 20 ! 9). The Discovery Order does not appear to address Tesla's need
25 for an appropriate order protecting any audio or video discovery it may produce. _ _ _ _ _ _ _ M_.,.._.....,._
The Discovery Order was served on the parties by mail on July 3, 2019.
27 3 Tesla believes the Court intended to refer to the date of April 16, 2019 and not April 6.
The Discovery Order held that the motions were "otherwise DENIED" (Discovery Order, p.l), but
28 Tesla does not believe the Court was denying request a protective order. If the Court did deny
PETITIONER'S MOTION
FOR PROTECTIVE ORDER
Case No.: RG
AA
Document received by the CA 1st District Court of Appeal.
Tesla also asks the Court to partially stay the effect of its Discovery Order, in the event the
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Because the Discovery Order is unclear whether the Court considered and rejected Tesla's
2 objections to the production ofirrelevant portions of the video and audio and/or its request for a
3 protective order, Tesla submits this request for clarification or reconsideration of the order.
B. Tile Audio and Video Recordings
Tesla has certain audio and video recordings pertinent to the February 21, 2019 parking lot
6 event and the event of April 16, 20 l 9, during which Mr. Hothi followed a Tesla test car with three of
7 its employees while taking his own photos and videos. There are two short videos of Mr. James' (of
8 Tesla Security) encounter with Mr. Hothi
the Tesla parking lot 011 February 21, 2019. Both videos
9 include audio. There are also two videos, with audio, from the exterior mounted cameras depicting
l 0 the full 40-minute drive during which Mr. Hothi followed the Tesla car on Interstate 880 on April 16,
12 drive 011 April 16. Unlike the other audio at issue, this audio discloses the identities of, private
13 conversations of, and personal details about Tesla employees as well as the confidential business
14 information of Tesla regarding its technology and vehicle, among other things. This audio raises
15 serious privacy and confidentiality concerns, and should not be produced.
C. Online Attacks
After this lawsuit was initiated, various people on Twitter (apparently part ofthe anti-Tesla
18 short seller community) publicly identified (or in the new terminology, "doxed'1 Tesla employees
19 who had submitted testimony in support of Tesla's petition. The comments ranged from calling out
20 personal information about the employees, posting pictures ofthem, or falsely calling them liars.
21 See, e.g., Exhibit A to the Declaration of Eugene Illovsky, Al (Tesla employee's maiden name and
22 prior work history); A2 (saying Tesla employee's statement is "perjury"); A3 (identifying Tesla
23 employee by photo). Absent a protective order from the Court, Tesla expects that the production of
24 evidence pursuant to the Court's order will only exacerbate these personal attacks.
Ill
Ill
that request, Tesla would ask that the Court reconsider that ruling for the reasons set forth in this
28 motion.
PETITIONER'S MOTION
FOR PROTECTIVE ORDER
Case No.: RG190lAA
Document received by the CA 1st District Court of Appeal.
1l 2019. Finally, there is one video from an interior camera that depicts, from the car's interior, the fullPage 150 From: The Law Office of D GI Fax:
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ARGUMENT
A. The Court Order Should be Clarified to Apply Only to Those Portions of the Audio
1111d Video That Actually Depict Hothi's Offending Conduct
The audio of the April 16 incident documents private and personal conversations, discloses
4 Tesla's confidential and prnprietary business information, and contains other irrelevant matter. These
5 private conversations were never intended to be made public, and were clearly not what the Court had
6 in mind when it ordered production of materials it assumed would not raise confidentiality issues.
7 Moreover, the accompanying video evidence-together with Mr. Hothi's own voluminous evidence
8 of the evems--ts more than sufficient to demonstrate the conduct of which Tesla complains.
Furthermore, disclosure of those conversations will undoubtedly subject these employees to
l O an unwarranted invasion of privacy and further harassment on the internet, victimizing them even
show in in the lllovsky declaration, this has already
12 occurred on Twitter as a result of Tesla's initial application. Disclosure of these employees' private
13 conversations would only add fodder for the internet twitter mill, subjecting Tesla's employees to
l 4 further harassment and prejudice.
Finally, allowing Hothi access to such confidential information in these proceedings would
16 defeat, or at least substantially weaken, the very purpose of the statute to provide the petitioner with a
17 "quick and truncated procedure." Order on Discovery at 3 (citing cases). Given that discovery
18 normally is not allowed in these proceedings, and that Tesla's employees have already been subjected
19 to harassment on the internet, Tesla should not be ordered to produce the audio ftom the vehicle's
20 interior, which documents personal, private, sensitive, and business-confidential conversations of its
21 employees.
B. The Court Should Enter a Protective Order
Tesla is concerned that the public release or display of any audio and video recordings will
24 disclose its confidential business information and subject its employees to further "unwarranted
25 annoyance, embarrassment, [and] oppression." CCP 2031.060. Tesla therefore asks for a protective
26 order that: 1) restricts Mr. Hothi's use of the recordings to (he hearing on July 26; 2) prevents Mr.
27 Hoihi from copying and disseminating the recordings; 3) prohibits the public filing or display of the
AA
PETITIONER'S MOTION
FOR PROTECTIVE ORDER
Case No.: RGl
Document received by the CA 1st District Court of Appeal.
l l further. That concern is not hypothetical.Page 151 From: The Law Office of D GI Fax:
To:
Fax: (510) 267-
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recordings (they will be produced to the Court for in camera review); and 4) prevents the public
2 playing of the recordings in Court without further Court order.
The Court, of course, has the authority to enter an appropriate protective order. Ibarra v.
4 Superior Court (2013) 217 Cal. App. 4th 695, 706 ("A trial court has the authority to supervise
5 discovery in the interests of justice"). While the parties did not engage in formal discovery (given the
6 fact that discovery is not normally allowed in these proceedings), it is within this Court's authority
7 "in the interests of justice and judicial economy" to consider Tesla's request for a protective order
8 regarding the discovery ordered produced. Id. ("In the interests of justice and judicial economy we
9 will treat [plaintiff's] motion for disclosure as a demand for inspection and deem Petitioner's
IO opposition to such motion as a motion for a protective order").
There are ample gmunds for a protective order here. While Tesla believes no discovery
12 should be allowed in these proceedings, certainly this Court should not allow discovery that will
13 reward Mr. Hothi with the very Tesla-confidential information that motivated his offending conduct
14 and then allow the public dissemination of that information, The Court should enter the requested
15 protective order to protect Tesla's non-public, business confidential information. See, e.g., Fed. R.
16 Civ. P. 26(c) (1)(0).
Moreover, there is every reason to believe that Mr. Hothi or his anti-Tesla supporters will
18 disseminate the evidence that Tesla may produce in this action and use it to harass Tesla's employees.
19 That is what they do on Twitter. Mr, Hothi himself has posted innumerable photos of Tesla-related
20 topics on Twitter, and has gone to great lengths to obtain that content-resorting to trespassing,
21 planting portable cameras on Tesla property, and tailing Tesla's employees on the freeway.
22 Additionally, after Tesla initiated this action, Mr. Hothi's followers began to harass Tesla's
23 employees on the internet. See Declaration of Eugene Illovsky. Protecting potential witnesses from
24 "unwarranted annoyance, embarrassment, [and] oppression" and preserving their privacy by issuing
25 the requested protective order is well within this Court's discretionary authority.
26 Ill
27 Ill
PETITIONER'S MOTION
FOR PROTECTIVE ORDER
Case No.: RGAA
Document received by the CA 1st District Court of Appeal.
JlPage 152 From: The Law Office of D GI Fax:
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CONCLUSION
Tesla respectfully requests that the Court clarify its Discovery order to provide that it does not
3 apply to the interior audio recording consisting of Tesla employees' private conversations, and that it
4 issue the requested protective order to prevent Mr. Hothi from disseminating in any way to any third
5 person any evidence produced by Tesla pursuant to the Discovery Order (including filing such
6 materials under seal if used in any motion or other papers in this action) and prohibiting the public
7 playing of the materials until further order of the Court.
Dated: July IO, 20 l
Respectfully submitted,
& ILLOVSKY LLP
IO
Document received by the CA 1st District Court of Appeal.
II
Tesla, Inc.
AA
PETITIONER'S MOTION
FOR PROTECTIVE ORDER
Case No.: RGl9015770Page 153 To:
Fax: (510) 267-
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DECLARATION
OF
RANDEEP HOTHI
EXHIBIT
Document received by the CA 1st District Court of Appeal.
From: The Law Office of D GI Fax:
CASE No. RG
DECLARATION OF RANDEEP HOTH! - EXHIIllT
AA752Page 154 From: The Law Office of D GI Fax:
l
To:
Fax: (510) 267-
Page: 147 of
01/11/20211:13 PM
D. GILL SPERLEIN, SBN THE LAW OFFICE OF D. GILL SPERLEIN
345 Grove Street
San Francisco, CA Telephone: (415) 404-Facsimile: (415) 404-gill@sperleinlaw.com
Attorneys for Respondent
SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF ALAMEDA
Tesla, Inc.,
Petitioner,
v.
Randeep Hothi,
RESPONDENT'S OPPOSITION TO
MOTION FOR CLARIFICATION OR
PARTIAL RECONSIDERATION OF
JULY 1 DISCOVERY ORDER AND FOR
PROTECTIVE ORDER
Scheduled Hearing
Respondent.
Date: 7/26/Time: 1:30 pm
Courtroom:
Document received by the CA 1st District Court of Appeal.
Case No. RG
Respondent Randeep Hothi responds as follows to Tesla, lnc.'s Motion for
Clarification or Partial Reconsideration of July l Discovery Order and for Protective
Order (the "Motion"). Tesla asks this Court to excuse it from producing some
minutes of audio recording, seeks a protective order as to recordings it does
produce, and asks the Court to partially stay its July 1ST discovery order in the event it
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does not rule on the Motion in advance of the July 16 production deadline. For the
reasons hereafter set forth, Hothi opposes the Motion.
I.
Where Are the Other Eight Video Recordings?
As a threshold matter, as to the April 16 incident involving the Model 3, Tesla
confirms it has three video recordings with audio: two recordings from exterior
mounted cameras and a third from a camera inside the car. (Motion at 4)
Plainly, the Court's July l order to produce "any photographic, audio, or
video recordings of the alleged incidents on February 21 and April 6, 2019" includes
this Court should expect as well, that Tesla will produce all the video from the eight
integrated cameras.
Tesla has repeatedly boosted that the video from those cameras is recorded
and then analyzed by Tesla in developing its autonomous driving capabilities. Even
Document received by the CA 1st District Court of Appeal.
recordings mode by the Model 3's eight integrated cameras. Hothi expects, and
if such material was not routinely archived, in this case - where the purpose that day
was to demonstrate the autopilot features - those recordings would certainly hove
been preserved. Tesla's TRO application alleged Hothi twice "swerved close enough
to trigger the Model 3's side-collision avoidance feature." (Declaration of Mott Cross
at 1) The Model 3's side cameras presumably will show exactly what the "swerves"
looked like and how close Hothi's car come. It will also demonstrate how those
alleged swerves compare to the maneuvers of other traffic surrounding the vehicle.
II.
Where Is the Cell Phone Photography?
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Tesla's TRO application also included a photo of Hothi's car that appears to
2 have been taken from a cell phone camera, presumably by one of the Model 3's
3 occupants ("the crew was able to take a photo of the car"), (Declaration of
Christine Leslie at 4) Any such cell phone recordings would be comprehended by
the Court's order that the parties produce "any photographic, audio, or video
7 recordings of the alleged incidents on February 21 and April 6, 2019."
Ill.
The Audio Recording Inside the Car Is Highly Relevant
Tesla's action is for "unlawful violence or a credible threat of violence" at the
workplace under Cal. Code Civ. Pro. §527.8. Here, there is no allegation of actual
Document received by the CA 1st District Court of Appeal.
violence during the April 16 event. To show a "credible threat of violence," Tesla
must show "o knowing and willful statement or course of conduct that would place
o reasonable person in fear for his or her safety ... and that serves no legitimate
purpose," (Col. Code Civ. Pro. §527.8(b)(2)) Putting aside for the moment the
crucial fact that Hothi's activities did serve a legitimate purpose, the mental state of
the car's occupants is obviously relevant to the question of whether they were in
fear for their safety. No single piece of evidence con bear more directly on this
question than what the car occupants said during the 40 or so minutes of the
encounter.
Also relevant is whether and when the car's occupants communicated with
anyone at Tesla about Hothi's activities. As is clear from the TRO application and
police reports, Tesla had known about Hothi, and targeted him, since the Spring of
2018. (Petition, Leslie Deel. at l).
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Tesla expresses concern that the audio recording may include "confidential
2 business information" about Tesla's technology or private details about the lives of
3 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,
7 then the Court can take the matter up in advance of or at the start of the July 8 hearing.
Tesla also attempts to create a moral equivalence between Tesla's and the
Document received by the CA 1st District Court of Appeal.
CEO's doxing and targeting of critics on the one hand, and comments made by
critics of Tesla on the other. (Motion at 4; Declaration of Eugene Illovsky at Exhibit A)
This is patent nonsense. No Tesla employees were doxed; the Tesla employees
mentioned in the Twitter postings already had established their identities by filing
sworn statements accompanying the TRO application. And, as is obvious from a
review of the Twitter comments, many were directed at the obvious conflicts
between the sworn testimony of the Tesla employees and the police reports of the
February 21, 2019 parking lot incident that later came to light.
Moreover, Tesla's Petition and the Court's Order granting the TRO against
Hothi was distributed on the Internet before it was available through the Court's
website, demonstrating that Tesla showed no concern about the privacy of its
employees when the objective was to discredit Hothi. Their concern at this point
simply does not ring true.
AA756-4-Page 158 From: The Law Office of D GI Fax:
IV.
To:
Fax: (510) 267-
Page: 151 of
01/11/20211:13 PM
Tesla's Request for Protective Order
Hothi stipulates to Tesla's request for a protective order to the extent Tesla
3 seeks to prohibit the use of discovery materials for any purpose beyond the hearing
on Tesla's petition for restraining order. However, any material that is presented as
relevant evidence at the hearing cannot be excluded from the public. Four
decades ago, the California Court of Appeal recognized that:
[i]f public court business is conducted in private, it becomes impossible
to expose corruption, incompetence, inefficiency, prejudice, and
favoritism. For this reason traditional Anglo-American jurisprudence
distrusts secrecy in judicial proceedings and favors a policy of maximum
public access to proceedings and records of judicial tribunals
(Estate of Hearst (1977) 67 Col. App.3d 777,784)
Document received by the CA 1st District Court of Appeal.
In the years since, courts hove confirmed time and again that the First
Amendment to the United States Constitution, the California Constitution, and the
California Rules of Court require public access to judicial records in all but the rarest
of circumstances. To protect the public's Constitutional right of access, the
California Rules of Court provide that a court may not seal a record without holding
a hearing and issuing on order that "expressly finds facts that establish: (1) There
exists an overriding interest that overcomes the right of public access to the record;
(2) The overriding interest supports sealing the record; (3) A substantial probability
exists that the overriding interest will be prejudiced if the record is not sealed; (4 )
The proposed sealing is narrowly tailored; and (5) No less restrictive means exist to
achieve the overriding interest." C.R.C. 2.550(d).
Where Tesla has perhaps cleverly, but nonetheless disingenuously attempted
to use a petition for workplace violence restraining order to silence a critic against
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whom it has had a long standing vendetta, the public has a critical interest in seeing
the evidence it relies upon in support of its petition or the evidence respondent relies
upon to oppose it.
V.
CONCLUSION
For the reasons set forth herein, Respondent Hothi respectfully requests that
this Court deny Tesla's Motion.
Date: July 11, D. Gill Sperlein
THE LAW OFFICE OF
D. GILL SPERLEIN
Attorneys for Respondent
AA758-6-
Document received by the CA 1st District Court of Appeal.
9 Respectfully Submitted,
10Page 160 To:
Fax: (510) 267-
Page: 153 of
01/11/20211:13 PM
DECLARATION
OF
RANDEEP HOTHI
EXHIBIT
Document received by the CA 1st District Court of Appeal.
From: The Law Office of D GI Fax:
CASE No. RGDECLARATION OF RANDEEP HOTH! - EXHIIllT
AA759Page 161 To:
From: The Law Office of D GI Fax:
Fax: (510) 267-
Page: 154 of
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Superior Court of California, County of Alameda
Hayward Hall of Justice
Tesla, Inc.
No. RG190lPlaintiff/Petitioner( s)
vs.
Minutes
Hothi
Dcfcndant/Rcspondcnt(s)
Abbreviated Title)
Honorable Jeffrey Brand
Department
, Judge
Cause called for trial: July 26, 2019.
Petitioner Matt Cross not appearing.
Petitioner Tesla. Inc. not appearing.
Respondent Randeep Hothi not appearing.
Minutes of
Entered on
Document received by the CA 1st District Court of Appeal.
Dismissal entered on this date. The court drops this hearing.
07/26/07/26/
_J+
Chad Finke Executive Officer/ Clerk of the Superior Court
Bv
.x!Jcilf
Deputy Clerk
Minutes
AA
Ml3149423Page 162 To:
From: The Law Office of D GI Fax:
ATTORNEY OR PARTY WITHOUT ATTORNEY:
STATE BAR NO:
D. Gill Sperlein
FIRM NAME The Law Office of D. Gill Sperlein
STREET ADDRESS: 345 Grove Street, , CA cITY San Francisco
TELEPHONE NO
415-404-6615 X1QE-MAIL ADDRESS: gill@sperleinlaw.com
ATTORNEY FOR (oome) Plaintiff Randeep Hothi
Fax: (510) 267-
Page: 155 of
FILED BY FAX,.v
POS-
ALAMEDA COUNTY
NAME
January 12, STATE
FAX NO.:
ZIPCODE CA
415-404-
CLERK OF
THE SUPERIOR COURT
By Shabra lyamu, Deputy
CASE NUMBER
RG
SUPERIOR COURT OF CALIFORNIA, COUNTY OF ALAMEDA
STREET ADDRESS
01/11/20211:13 PM
24405 Amador Street
MAILING ADDRESS:
cITY AND zip coor
BRANCH NAME
Hayward, CA Hayward Hall of Justice
CASE NUMBER
Plaintiff/Petitioner: Randeep Hothi
RG
Defendant/Respondent: Elon Musk
JUDICIAL OFFICER.
PROOF OF SERVICE-CIVIL
Check method of service (only one):
By Personal Service
By Mail
D
By Messenger Service
D
By Fax
Julia Spain
By Overnight Delivery
[X] By e-mail per agreement
DEPARTMENT·
1. At the time of service I was over 18 years of age and not a party to this action.
2. My residence or business address is:
345 Grove Street, San Francisco, CA 3.
The fax number from which I served the documents is (complete if service was by fax):
4. On (date): January 11,
I served the following documents (specify):
The documents are listed in the Attachment to Proof of Service-Civil (Documents Served) (form POS-040(D)).
5. I served the documents on the person or persons below, as follows:
a. Name of person served: Alex Spiro, Michael T. Lifrak, Jeanine M. Zalduendo, and Aubrey Jones
b.
(Complete if service was by personal service, mail, overnight delivery, or messenger service.)
Business or residential address where person was served:
Service by email per agreement to alexspiro@quinnemanuel.com, michaellifrak@quinnemanuel.com,
c.
(Complete if service was by fax.)
jeaninezalduendo@quinnemanuel.com and aubreyjones@quinnemanuel.com
Fax number where person was served:
The names, addresses, and other applicable information about persons served is on the Attachment to Proof of ServiceCivil (Persons Served) (form POS-040(P)i
6. The documents were served by the following means (specify):
a.
By personal service. I personally delivered the documents to the persons at the addresses listed in item 5. (1) For a
party represented by an attorney, delivery was made (a) to the attorney personally; or (b) by leaving the documents at the
attorney's office, in an envelope or package clearly labeled to identify the attorney being served, with a receptionist or an
individual in charge of the office; or (c) if there was no person in the office with whom the notice or papers could be left, by
leaving them in a conspicuous place in the office between the hours of nine in the morning and five in the evening. (2) For
a party, delivery was made to the party or by leaving the documents at the party's residence with some person not
younger than 18 years of age between the hours of eight in the morning and eight in the evening.
Document received by the CA 1st District Court of Appeal.
Do not use this form to show service of a summons and complaint or for electronic service.
See USE OF THIS FORM on page 3.
Page 1 ofForm Approved for Optional Use
Judicial Council of California
POS--040 [Rev, January 1, 2020]
PROOF OF SERVICE-CIVIL
(Proof of Service)
AA
Code of Civil Prooedure, §§ 1011, 1013, 1013a,
2015.5: Cal. Rules of Court, rule 2.
www.courts.ca.govPage 163 To:
From: The Law Office of D GI Fax:
Fax: (510) 267-
Page: 156 of
01/11/20211:13 PM
POS-CASE NAME:
CASE NUMBER
Hothi v, Musk
RG
By United States mail. I enclosed the documents in a sealed envelope or package addressed to the persons at the
addresses in item 5 and (specify one):
6, b,
(1)
deposited the sealed envelope with the United States Postal Service, with the postage fully prepaid.
(2)
placed the envelope for collection and mailing, following our ordinary business practices. I am readily familiar with this
business's practice for collecting and processing cerrespondence for mailing. On the same day that correspondence
is placed for collection and mailing, it is deposited in the ordinary course of business with the United States Postal
Service, in a sealed envelope with postage fully prepaid.
I am a resident or employed in the county where the mailing occurred. The envelope or package was placed in the mail at
(city and state):
c.
By overnight delivery. I enclosed the documents in an envelope or package provided by an overnight delivery carrier
and addressed to the persons at the addresses in item 5. I placed the envelope or package for collection and overnight
delivery at an office or a regularly utilized drop box of the overnight delivery carrier.
d.
By messenger service. I served the documents by placing them in an envelope or package addressed to the persons at
the addresses listed in item 5 and providing them to a professional messenger service for service. (A declaration by the
messenger must accompany this Proof of Service or be contained in the Declaration of Messenger below.)
D
By fax transmission. Based on an agreement of the parties to accept service by fax transmission, I faxed the documents
to the persons at the fax numbers listed in item 5. No error was reported by the fax machine that I used. A copy of the
record of the fax transmission, which I printed out, is attached.
I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct.
Date:
January 11,
D. Gill Sperlein
(TYPE OR PRINT NAMC
or DECLARANT)
(SIGNATURE OF OECLARANT)
(If ,tem 6d above is checked, the declaration below must be completed or a separate declaration from a messenger must be attached.)
DECLARATION OF MESSENGER
By personal service. I personally delivered the envelope or package received from the declarant above to the persons at the
addresses listed in item 5. (1) For a party represented by an attorney, delivery was made (a) to the attorney personally; or (b) by
leaving the documents at the attorney's office, in an envelope or package clearly labeled to identify the attorney being served,
with a receptionist or an individual in charge of the office; or (c) if there was no person in the office with whom the notice or
papers could be left, by leaving them in a conspicuous place in the office between the hours of nine in the morning and five in the
evening. (2) For a party, delivery was made to the party or by leaving the documents at the party's residence with some person
not younger than 18 years of age between the hours of eight in the morning and eight in the evening.
At the time of service, I was over 18 years of age. I am not a party to the above-referenced legal proceeding.
I served the envelope or package, as stated above, on (date):
I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct.
Date:
(NAME Of DECLARANT}
POS...Q40 [Rev. January 1, 2020]
Document received by the CA 1st District Court of Appeal.
e.
(SIGNATURE OF DECLARANT)
PROOF OF SERVICE-CIVIL
(Proof of Service)
AA
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To:
Fax: (510) 267-
Page: 157 of
01/11/20211:13 PM
POS-0401D
CASE NUMBER:
SHORT TITLE:
Hothi V. Musk
RG
ATTACHMENT TO PROOF OF SERVICE-CIVIL (DOCUMENTS SERVED)
(This Attachment is for use with form POS-040)
The documents that were served are as follows (describe each document specifically):
PLAINTIFF RANDEEP HOTH I'S OBJECTIONS TO DEFENDANT'S EVIDENCE SUBMITTED IN SUPPORT OF
DEFENDANT'S SPECIAL MOTION TO STRIKE
PLAINTIFF RANDEEP HOTHl'S MEMORANDUM IN OPPOSITION
TO PLAINTIFF ELON MUSK'S SPECIAL MOTION TO STRIKE
Document received by the CA 1st District Court of Appeal.
DECLARATION OF RANDEEP HOTHI IN SUPPORT OF HIS OPPOSITION TO DEFENDANT'S SPECIAL
MOTION TO STRIKE
Fo,m Appro,ect toe Optional U,e
Judioial Council of California
POS-040(0) [New Januafy 1, 2005]
ATTACHMENT TO PROOF OF SERVICE-CIVIL (DOCUMENTS SERVED)
(Proof of Service)
AA763
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 APPENDIX
VOLUME VII OF VIII, PAGES AA600 TO AA763
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
AA600
Document received by the CA 1st District Court of Appeal.
Defendant-Appellant.
PDF Page 3
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
AA601
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.
PDF Page 4
08
09
10
11
12
AA602
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
PDF Page 5
14
15
16
17
18
19
20
AA603
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
PDF Page 6
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
AA604
PDF Page 7
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
AA605
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.
PDF Page 8
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
AA606
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
PDF Page 9
23
14
22
15
17
21
13
AA607
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
PDF Page 10
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
AA608
PDF Page 11
Exhibit Number 13
1 QUINN EMANUEL URQUHART & SULLIVAN, LLP
Alex Spiro (pro hac vice pending)
2
alexspiro@quinnemanuel.com
51 Madison Avenue, 22nd Floor
3 New York, New York 10010
Telephone: (212) 849-7000
4
QUINN EMANUEL URQUHART & SULLIVAN, LLP
5 Michael T. Lifrak (Bar No. 210846)
michaellifrak@quinnemanuel.com
6 Jeanine M. Zalduendo (Bar No. 243374)
jeaninezalduendo@quinnemanuel.com
7 Aubrey Jones (Bar No. 326793)
aubreyjones@quinnemanuel.com
8 865 South Figueroa Street, 10th Floor
Los Angeles, California 90017-2543
9 Telephone: (213) 443-3000
l O Attorneys for Defendant Elon Musk
SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF ALAMEDA
CASE NO. RG20069852
RANDEEP HOTHI,
14
Plaintiff,
[PROPOSED] ORDER GRANTING
DEFENDANT ELON MUSK'S MOTION
TO STRIKE THE COMPLAINT
PURSUANT TO CAL. CODE CIV. PROC.
SECTION 425.16
Defendants.
Assigned for all purposes to:
Judge Julia Spain
Department 520
15
16
vs.
17 ELON MUSK,
18
19
20
~
- c-,.J
cyo
~~
C:J.'0G
Hearing Date: January 7, 2021
21
22
Complaint Filed: August 4, 2020
None Set
Trial Date:
23
24
25
26
27
28
Case No. RG20069852
[PROPOSED] ORDER GRANTING DEFENDANT ELON MUSK'S MOTION TO STRIKE THE COMPLAINT
PURSUANT TO CAL. CODE CIV. PROC. SECTION 425.16
AA609
PDF Page 12
1
2
[PROPOSED] ORDER
The Court, having considered Defendant Elon Musk’s motion to strike the complaint pursuant
3 to California Civil Code Section 425.16, the declarations of Elon Musk, Christine Leslie, Tyler
4 James, and Jeanine Zalduendo, and the request for judicial notice, the papers filed in response thereto,
5 all other argument and the record of this case, and GOOD CAUSE appearing therefor; hereby finds
6 that Plaintiff’s Complaint should be stricken under Cal. Code Civ. Proc. § 425.16.
7
IT IS HEREBY ORDERED that Plaintiff Randeep Hothi’s Complaint is stricken, and his
8 claim against Mr. Musk is DISMISSED WITH PREJUDICE.
9
Because Mr. Musk has prevailed on his anti-SLAPP motion, pursuant to Cal. Code Civ. Proc.
10 § 425.16(c)(1), he is entitled to recover mandatory attorney’s fees in an amount to be determined.
11
IT IS SO ORDERED.
13
14 DATED:
_____________, 2021
15
16
17
Honorable Julia Spain
Judge of the Superior Court
18
19
20
21
22
23
24
25
26
27
28
Document received by the CA 1st District Court of Appeal.
12
Case No. RG20069852
[PROPOSED] ORDER GRANTING DEFENDANT ELON MUSK’S MOTION TO STRIKE THE COMPLAINT
AA610 PURSUANT TO CAL. CODE CIV. PROC. SECTION 425.16
-1-
PDF Page 13
PROOF OF SERVICE
1
2 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,
4 10th Floor, Los Angeles, CA 90017-2543.
3
6
7
8
9
On October 30, 2020, I served true copies of the following document(s) described as
[PROPOSED] ORDER GRANTING DEFENDANT ELON MUSK’S MOTION TO
STRIKE THE COMPLAINT PURSUANT TO CAL. CODE CIV. PROC. SECTION
425.16
on the interested parties in this action as follows:
10 Lawrence J. Fossi
25 Hawthorn Lane
11 Bozeman, MT 59715
Lawrence.fossi@outlook.com
12
Law Office of D. Gill Sperlein
345 Grove Street
San Franciso, CA 94102
gill@sperleinlaw.com
13
BY ELECTRONIC MAIL TRANSMISSION: By electronic mail transmission from
jeaninezalduendo@quinnemanuel.com
on October 30, 2020, by transmitting a PDF format copy of
14
such documents to each such person at the e-mail address listed above, per agreement between the
15 parties regarding electronic mail service. The documents were transmitted by electronic
transmission and such transmission was reported as complete and without error.
16
I declare under penalty of perjury under the laws of the State of California that the foregoing
17
is true and correct.
18
Executed on October 30, 2020, at Los Angeles, California
19
20
Jeanine Zalduendo
21
22
23
24
25
26
27
28
-1AA611
Document received by the CA 1st District Court of Appeal.
5
Case No. RG20069852
PROOF OF SERVICE
PDF Page 14
Exhibit Number 14
:Illllll lllll lllll lllll lllll lllll lllll lllll llll llil
22587651
1 QUINN EMANUEL URQUHART & SULLIVAN, LLP
Alex Spiro (pro hac vice pending)
2
alexspiro@quinnemanuel.com
51 Madison Avenue, 22nd Floor
3 New York, New York 10010
Telephone: (212) 849-7000
4
QUINN EMANUEL URQUHART & SULLIVAN, LLP
5 Michael T. Lifrak (Bar No. 210846)
michaellifrak@quinnemanuel.com
6 Jeanine M. Zalduendo (Bar No. 243374)
jeaninezalduendo@quinnemanuel.com
7 Aubrey Jones (Bar No. 326793)
aubreyj ones@quinnemanuel.com
8 865 South Figueroa Street, 10th Floor
Los Angeles, California 90017-2543
9 Telephone: (213) 443-3000
11
SUPERIOR COURT OF THE STATE OF CALIFORNIA
12
COUNTY OF ALAMEDA
13
RANDEEP HOTHI,
CASE NO. RG20069852
14
Plaintiff,
15
16
NOTICE OF ERRATA REGARDING THE
SIGNATURE PAGE TO THE
DECLARATION OF ELON MUSK IN
SUPPORT OF ELON MUSK'S MOTION
TO STRIKE THE COMPLAINT
PURSUANT TO CAL. CODE CIV. PROC.
SECTION 425.16
vs.
17 ELON MUSK,
18
Defendants.
19
21
Assigned for all purposes to:
Judge Julia Spain
Department 520
22
Hearing Date: January 7, 2021
20
23
Complaint Filed: August 4, 2020
Trial Date:
None Set
24
25
26
27
Q
N
~
28
~
I R,
~
Case No. RG20069852
NOTICE OF ERRATA
AA612
Document received by the CA 1st District Court of Appeal.
10 Attorneys for Defendant Elon Musk
PDF Page 15
TO THE COURT, ALL PARTIES, AND THEIR ATTORNEYS OF RECORD:
2
PLEASE TAKE NOTICE that Def~ndant Elon Musk hereby respectfully submits this
3
Notice of Errata regarding the signature page to the Declaration of Elon Musk in Support of Elon
4
Musk's Motion to Strike the Complaint Pursuant to Cal. Code Civ. Proc. Section 425.16 (the
5
"Musk Declaration"). It has come to counsel's attention that the Musk Declaration was filed
6
without the executed signature page on Friday, October 30, 2020. The signed Musk Declaration
7
was, however, served on all parties on Friday, October 30, 2020.
8
The signature page to the Musk Declaration is attached hereto as Exhibit A.
9
10
Respectfully submitted,
12
QUINN EMANUEL URQUHART & SULLIVAN, LLP
13
14
15
By:
AA· _
_,/~:
,,/,,.'f~i
Michael T. Lifrak
Attorneys for Elon Musk
16
17
18
19
20
21
22
23
24
25
26
27
28
-1-
AA613
Case No. RG20069852
NOTICE OF ERRATA
Document received by the CA 1st District Court of Appeal.
DATED: November 3, 2020
11
PDF Page 16
-
PROOF OF SERVICE
2 STATE OF CALIFORNIA, COUNTY OF LOS ANGELES
I
3
At the time of service, I was over 18 y·ears 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 ·
4 Figueroa Street, 10th Floor, Los Angeles, CA 90017-2543.
5
6
7
8
On November 3, 2020, I served true copies of the following document(s) described as
NOTICE OF ERRATA REGARDING THE SIGNATURE PAGE TO THE
DECLARATION OF ELON MUSK IN SUPPORT OF ELON MUSK'S MOTION
TO STRIKE THE COMPLAINT PURSUANT TO CAL. CODE CIV. PROC.
SECTION 425.16
9 on the interested parties in this action as follows:
Lawrence J. Fossi
Law Office of D. Gill Sperlein
345 Grove Street
San Franciso, CA 94102
gill@sperleinlaw.com
11 25 Hawthorn Lane
Bozeman, MT 59715
12 Lawrence.fossi@outlook.com
131'1--------------------'-----------------'
14
BY ELECTRONIC MAIL TRANSMISSION: By electronic mail transmission from
jeaninezalduendo@quinnemanuel.com on November 3, 2020, by transmitting a PDF format copy
15 of such documents to each such person at the e-mail address listed above, per agreement between
the parties regarding electronic mail service. The documents were transmitted by electronic
l 6 transmission and such transmission was reported as complete and without error.
17
I declare under penalty of perjury under the laws of the State of California that the
18 foregoing is true and correct.
19
Executed on November 3, 2020, at Los Angeles, California
~~~kfJ
20
21
22
23
24
25
26
27
28
-1-
AA614
Case No. RG20069852
PROOF OF SERVICE
Document received by the CA 1st District Court of Appeal.
10,-----------------r-----------------,
PDF Page 17
1 hereto as Exhibit B. My statement aboutMr. Hothi having ''actively
2 was based on, among other things, the report; I had ;eceived about
a~sed" Tesla ~:rnployees
Mt,+~
I
posiin~tl·otographs
3 of the Fremont factory, p~ting bidden cameras, and being found in the erl• patki~ ot. My
'f
4 statement that~- Hoi:l)I ~1deswiped a Tesla employee was bas~ on the ~or! I recOIV tfrom a
5 member of Tesla s Security team on February 22, 2019, reganling themct:nt that occr on
6 February 21, 2019. I believed my state=ts were true and ~urate, basMon the
rept
I had
7 rece1y~d :from Tesla employees and, the fact that they had submitted decla.r:at10ns under oath, Which
,i1~)~
8 contained the same information, in connection with a temporary r¢sll'ainink 1rd!:lr that rlsla
My statement that the sideswiping "could
IQ with 6 inc1!es of difference" and that he "almost killed" Tesla employees
have bee~ a death
my opiniof based on
11 ~e same ~ormation. . In m.y opinion, an~ car hitting.a pedes~an i$ a·seriou•·s issue, anl:s.ix
12 mcbes of difference could be a matter of life or death m ~nch crrcumstancJ. :
13
8.
.
.
Mr. Greenspan then responded to my email at6:17 pm. A h ieand co;rre t copy of
1
1
.
.
I
14 this email is attached hereto as Exhibit C. We then exchanged a number c)f ~ditional eµiails
I '
I
15 over the course ofthe night and following day. A true and correct .copy ofitqese emails 's
I
!
!
16 attached hereto as Exhibit D.
17
18
I declare under penalty .ofperjury under th~Jaws .of the United Statei of America
rat the
19 foregoing. is true and correct and that this docum.ent was executed in Los · g~les., Califotnia.
20
21 DATED: October 29., 2020
22
23
24
25
26
27
28
-2-
Case No.. 020069852
MUSK OE
PDF Page 18
To:
From: The Law Office of D GI Fax: 14154046616
Fax: (510) 267-1547
Page: 10 of 157
01/11/20211:13 PM
Exhibit Number 15
FILED BY FAX
ALAMEDA COUNTY
D. GILL SPERLEIN, SBN 172887
THE LAW OFFICE OF D. GILL SPERLEIN
2 345 Grove Street
San Francisco, CA 94102
3 Telephone: (415) 404-6615
Facsimile: (415) 404-6616
4 g:ill@sperleinlaw.com
January 12, 2021
CLERK OF
THE SUPERIOR COURT
By Shabra lyamu, Deputy
CASE NUMBER
RG20069852
5 LAWREN CE J. FOSSI, TX SBN 07280650 (pro hac vice)
25 Hawthorn Lane
6 Bozeman, MT 59715
Telephone: (713) 854-4027
7 lawrence.fossi(moutlook.corn
8 Attorneys for Plaintiff Randeep Hothi
9
SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF ALAMEDA
UNLIMITED JURISDICTION
10
12
13
14
15
RANDEEP HOTHI, an individual,
16
17
18
19
Plaintiff,
V.
ELON MUSK, an individual,
Defendant.
)
)
)
)
)
)
Case No: RG20069852
ASSI.GNED FOR ALL PURPOSES TO:
JUDGE JULIA SPAIN
DEPT. 520-HAYWARD HALL OF
JUSTICE
)
)
)
)
)
PLAINTIFF RANDEEP HOTHl'S
MEMORANDUM IN OPPOSITION
TO PLAINTIFF ELON MUSK'S SPECIAL
MOTION TO STRIKE
)
) BY FAX
20
21
22
23
)
)
)
)
)
Judge: Julia Spain
Dept.: 520
Date: Janumy 27, 2021
Time: I :30 p.rn.
)
24
25
26
Document received by the CA 1st District Court of Appeal.
11
27
28
AA616
CASE No. RG20069852
OPPOSITION TO SPECIAL MOTION TO STRIKE
PDF Page 19
From: The Law Office of D GI Fax: 14154046616
To:
Fax: (510) 267-1547
Page: 11 of 157
01/11/20211:13 PM
TABLE OF CONTENTS
2 TABLE OF CONTENTS ....................................................................................................................... ii
3 TABLE OF AUTHORITIES ................................................................................................................. iii
INTRODUCTION .................................................................................................................................. 1
4
RELEVANT FACTS .............................................................................................................................. 1
6
7
8
9
ARGUMENT ......................................................................................................................................... 4
I.
Musk Docs Not Meet His Burden of Showing Any of His Defamatory Remarks 'Arise From'
Protected Activity.······························································································································ 5
A. None of Musk's three accusations of criminal conduct were made 'in connection with a
. issue
.
.
.
' ..................................................................................... _s
publ 1c
or an issue
ot· publ.tc mterest.
1.
10
issue of public interest. ............................................................................................................... 5
11
2.
12
15
16
17
Musk's accusations in his one-on-one email sniping with Greenspan bear no 'functional
relationship' to any issue of public interest. ............................................................................... 6
13
14
Musk's charges of criminal conduct do not ·contribute to the public debate' about any
Document received by the CA 1st District Court of Appeal.
5
There was no pending litigation sufficient to invoke subdivision (e)(2) ................................ 8
B.
Hothi Has a High Probability of Prevailing on the Merits of His Claim................................... 9
II.
A.
Musk's allegations constitute defamationperse.................................................................... 9
B.
Musk fails to establish any valid defense or privilege ......................................................... 10
Musk fails to raise any argument relating to his charge that Hothi "almost killed" Tesla
1.
employees other than James ..................................................................................................... 10
18
2.
Musk's other statements were not opinion but contained provably false assertions of fact.
19
20
10
3.
No affirmative defenses salvage Musk's statements ........................................................ 12
21
a)
The substantial truth doctrine does not apply ............................................................... 13
22
b)
Hothi is not a public figure, but even ifhe were, there is ample evidence of actual
23
malice ................................................................................................................................... 14
CONCLUSION .................................................................................................................................... 15
24
25
26
27
28
-iiAA617
CASE No. RG20069852
OPPOSITION TO SPECIAL MOTION TO STRIKE
PDF Page 20
From: The Law Office of D GI Fax: 14154046616
To:
Fax: (510) 267-1547
Page: 12 of 157
01/11/20211:13 PM
TABLE OF AUTHORITIES
2
CASES
3
4 Barnes-Hind, Inc. v. Superior Court (1986) 181 Cal. App. 3d 377 ....................................................... 9
S Behr v. Redmond (2011) 193 Cal. App. 4th 517 .................................................................................. 10
Bently Reserve L.P. v. Papaliolios (2013) 218 Cal. App. 4th 418 ................................................ passim
6
De/vfartini v. De/vfartini (On Reh 'g) (9th Cir. Dec. 23, 2020)
F. App'x _, 2020 WL 7658347 ..... 9
7 Du Charme v. International Brotherhood ofElectrical TYorkers (2003) 110 Cal. App. 4th 107 .......... 8
8 Duong v. ITT Educ. Svcs., Inc., Super. Ct. No.RGI 4724442 .............................................................. 15
9 FilmOn.com v. Double Verify, Inc. (2019) 7 Cal 5th 133 ............................................................... 5, 6, 7
10 Franklin v. Dynamic Details, Inc. (2004) 116 Cal. App. 4th 375 ........................................................ 11
12
13
Grenier v. Taylor (2015) 234 Cal. App. 4th 471 .......................................................................... 6, 8, 14
Hailstone v. Martinez (2008) 169 Cal. App. 4th 728 ............................................................................. 6
Document received by the CA 1st District Court of Appeal.
11
Laker v. Bd. ofTrs. of Cal. State Univ. (2019) 32 Cal. App. 5th 745 .................................................... 8
Long Beach Unified Sch. Dist. v. Margaret Williams, LLC (2019) 43 Cal. App. 5th 87 ..................... 12
14 Lundquist v Reusser ( 1994) 7 Cal. 4th 1193 ........................................................................................ 15
15 Masson v. New Yorker Magazine, Inc. (1991) 501 U.S. 496 ............................................................... 13
16 Milkovich v. Lorain Journal Co. (1990), 497 U.S. 1...................................................................... 10, 11
17
18
Monster linergy Co. v. Schechter (2019) 7 Cal. 5th 781 ........................................................................ 4
Murray v. Tran (2020) 269 Cal. Rptr. 3d 231 ................................................................................ 5, 6, 7
Overstock.com, Inc. v. Gradient Analytics, Inc. (2007) 151 Cal. App. 4th 688 ........................... 4, 9, 10
19
Park v. Board of Trustees of Cal. St. Univ. (2017) 2 Cal. 5th I057 ....................................................... 4
20 People v. Bipialaka (2019) 34 Cal. App. 5th 455 ................................................................................ 10
21
Rand Resources, LLC v. City of Carson (2019) 6 Cal.5th 610 .............................................................. 8
22 Roemer v. Retail Credit Co. ( 1975) 44 Cal. App. 3d 926 .................................................................... 15
23 Siam v. Kizilbash (2005) 130 Cal. App. 4th 1563 .................................................................................. 9
Summit Bankv. Rogers (2012), 206 Cal. App. 4th 669 .................................................................... 9, 13
24
Super Future Equities, Inc. v. Wells Fargo Bank Minnesota, NA. (N.D. Tex. 2008) 553 F. Supp. 2d
25
680 .................................................................................................................................................... 11
26 Tesla, Inc. v. Randeep Hothi (April 19, 2019) Alameda County Superior Court, RGI 9015770 ........... 3
27 Time, Inc. v. Firestone (1976) 424 U.S. 448 .......................................................................................... 5
28
-iiiAA618
CASE No. RG20069852
OPPOSITION TO SPECIAL MOTION TO STRIKE
PDF Page 21
From: The Law Office of D GI Fax: 14154046616
To:
Fax: (510) 267-1547
Page: 13 of 157
01/11/20211:13 PM
Weinberg v. Feisel (2003) 110 Cal.App.4th l 122 .................................................................................. 5
2 Weller v. ABC (1991) 232 Cal. App. 3d 991 ........................................................................................ 11
3 Wilcox v. Superior Court (1994) 27 Cal. App. 4th 809 .......................................................................... I
4
Wilson v. Cable News Network. Inc. (2019) 7 Cal. 5th 871 ................................................................... 7
Wong v. Jing (2010) 189 Cal. App. 4th 1354 ....................................................................................... 12
5
Yang v. Tenet Healthcare, Inc. (2020) 48 Cal. App. 5th 939 ................................................................. 7
6
7
STATUTES
8 Cal. Civ. Code§ 46.1 ............................................................................................................................. 9
9 Cal. Civ. Code§ 527.6 ......................................................................................................................... 11
10 Cal. Civ. Proc.§ 527.8 ..................................................................................................................... 3, 11
12
13
Cal. Code Civ. Pro.§ 425.16(e)(2) ......................................................................................................... 8
Cal. Code Civ. Pro.§ 425.16(e)(4) ..................................................................................................... 5, 8
Document received by the CA 1st District Court of Appeal.
11
Cal. Penal Code§ 245(a)(l) ................................................................................................................. 10
Cal. Penal Code§ 646.9(a) ................................................................................................................... 10
14 Cal. Yeh. Code§ 23103(a) ................................................................................................................... JO
15
TREATISES
16
17 Elder, Defamation: A Lawyer's Guide (2012) Fact Versus Opinion,§ 8:2 ......................................... 11
18
19
20
21
22
23
24
25
26
27
28
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INTRODUCTION
2
The classic SLAPP action is a case of dubious merit, filed mainly to force one's foe to spend
3
4 his limited time, energy, and money fighting in court, rather than in the political or other arena in which
5 the parties have been battling. (lt'ilcox v. Superior Court (1994) 27 Cal. App. 4th 809, 815-817, as
6 modified on denial of rehearing, Sept. 15, 1994.) Here, it is Musk's motion to strike (the "Motion") that
7 is the SLAPP. First, Musk tried to silence Hothi by directing his company, Tesla, to file a bogus civil
8 harassment claim, which Tesla withdrew when the court required Tesla to produce its evidence. Now,
9 the world's wealthiest man, after defaming Hothi with false accusations of criminal conduct, has filed
10 a meritless motion in an attempt to skate free of the consequences.
Document received by the CA 1st District Court of Appeal.
Hothi's complaint is far outside the anti-SLAPP act. Musk's defamatory accusations were
11
12 unrelated to any issue of public interest or pending court proceeding, and Hothi has a high likelihood
b~
of success because Musk's defamatory per se accusations
one of which, his Motion completely
14 ignores were not mere opinion, but actionably false factual statements.
RELEVANT FACTS
15
16
Tesla and Musk - Defendant Elon Musk, the CEO of Tesla, actively controls Tesla and
17 exercises an extraordinarily high degree of control over its activities including the activities and
18 decisions described in this Memorandum. (Declaration ofRandeep Hothi ("Hothi Deel."), ii 32.)
19
Hothi and Musk - Hothi, a graduate student at the University of Michigan, is a pennanent
20 resident of Fremont, California. (Hothi Deel., ii 1.) Beginning in 2015, he developed an interest in
21
Tesla's business. (id., ii 4.) Over time, he became skeptical of several Tesla claims about its technology,
22 and he anonymously shared that skepticism on Twitter under his account, @skabooshka. (Id., i1i14-5.)
23
For instance, Hothi doubted Musk's 2016 claim that Tesla's manufacturing processes for its
24 forthcoming Model 3 car would function largely without human input and be superior to those of other
25 automobile manufacturers. (Id., i1i16-7.) From observations made outside Tesla's Fremont factory,
26 Hothi tracked Tesla's actual production rate (far lower than promised) and documented its erection of
27
28
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a tent for the manufacture of Model 3 cars. Hothi posted his findings, including photos, on Twitter. (Id.,
2
3
Hothi also doubted Musk's 2016 claims that Tesla was close to achieving full self-driving
4
capability, and that by the end of 2017 a Tesla would be able to drive cross-country without human
5
intervention. (Hothi Deel., iii! 4, 13-14.) Early in 2017, Tesla began offering "full self-driving" as an
6
expensive option, and proceeds from its sale have been an important component of Tesla's revenues.
7
(id., ilil 14-15.) Tesla's employees kept Musk apprised of Hothi's Twitter postings. (Motion at 3:3.) By
8
January 2019, Tesla had identified Hothi and his car. (Id., i1i1 18, 22-23.)
9
The Parking Lot Incident- On February 21, 2019, Hothi lawfully entered the Fremont factory
10
and showroom grounds to gather infom1ation about Model 3 production, backing his car into a publicly
11
12
Document received by the CA 1st District Court of Appeal.
accessible parking space. (Hothi Deel., ii 16.) A Tesla license plate reader identified him, prompting
Tesla to send one or more security officers, including Tyler James, to confront Hothi. (Id., ilil 17, 22.)
13
After later viewing video from James' cellphone and Tesla's security camera, police determined
14
that "[als James approached the vehicle, [Hothi] drove away at a slow rate of speed." (Id.
15
ilil 21, 27-28
& Ex. 3 thereto, emphasis added.) James claimed to have been struck in the knee, but police who viewed
16
the videos saw no contact and reported: "James did 11ot have a11y injuries." (Id., emphasis added.) For
17
his part, even James did not believe the alleged contact was intentional or that Hothi was aware of it.
18
(ibid.) Though Musk tells this Court Hothi' s action constituted "Assault of a Tesla Employee" (Motion
19
at 3 & 9-11 ), Tesla has consistently refused to disclose James' medical records, videos of the incident,
20
or anything else to corroborate James' claim of contact, much less injury. (Hothi Deel., ilil 29-30, 42-
21
48, 52 & Exs. 4-7, 9-12 & 15.) Hothi does not believe he struck James and believes the video evidence
22
in Tesla's possession will prove he did not. (Id., ii 24.)
23
The Roadway Incident - On April 16, 2019, Hothi, while driving, happened upon a Tesla
24
vehicle with manufacturer plates and roof-mounted cameras. He correctly surmised that the vehicle
25
was recording data for Tesla's upcoming "Autonomy Day," at which Musk would tout Tesla's
26
"autonomous driving" capabilities and promise a million "robotaxis" by the end of 2020. (Hothi Deel.,
27
28
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ii 35.) Hothi observed and photographed the vehicle, but at no point drove recklessly or endangered any
2
of its occupants' safety. (Id., i!il 35-37.) Hothi later posted the photographs on Twitter. (Id., ii 38.)
3
Evidently, Musk was irritated. Three days later, he posted an obscene drawing aimed at Hothi
4
and Tesla filed an action under Cal. Civ. Proc. § 527.8, claiming Hothi had dangerously swerved his
5
car towards the Model 3. (Tesla, Inc. v. Randeep Ilothi (April 19, 2019) Alameda County Superior
6
Court, RG 19015770) (herein, the "Harassment Action"). (Hothi Deel., ilil 19, 26, 41 & Exs. 2 & 8
7
thereto.) Tesla's petition also mentioned the alleged February parking lot incident, asserting James
8
"suffered minor injuries" and attaching a declaration (from a declarant who was not present) ave1Ting
9
that Hothi "drove his car quickly and recklessly out of the parking lot." (Id., i1i121, 26 & Exs. 2-3
10
unrepresented when the court granted the TRO. (id. ii 19.)
12
In advance of the injunction hearing, Hothi requested discovery. (Hothi Deel., i1i129, 42.) The
13
Court ordered Tesla to produce all its audio and video recordings made in connection with both the
14
parking lot incident and roadway incidents. (Id.
15
i! 48.) Tesla vigorously opposed the request both before
and after the court granted it, even though, were Tesla's claims truthful, the recordings would have
16
established the veracity of the sworn statements on which the injunction issued. (Id.
17
iii! 43-44, 47-49 &
Exs. 5 & 13 thereto.) Immediately afi:er the Court denied Tesla's motion to reconsider the discovery
18
order on July 19, 2019, and even pledged to review Tesla's materials in camera, Tesla withdrew its
19
petition. (Id. i1i1 51-52 & Exs. 6 & 12 thereto.) The withdrawal of the petition is circumstantial evidence
20
that Tesla (and Musk) knew the allegations were contrived and false, and would not be supported by
21
the evidence.
22
Musk's Three Defamatory Accusations in His Defamatory Statement- On August 7, 2019,
23
19 days after Tesla dismissed its lawsuit, Musk in an email exchange with Aaron Greenspan, stated
24
that Hothi and others
25
... 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. (Motion 4: 23-25; Verified Complaint, ii 40 ("Defamatory
Statement").
26
27
28
Document received by the CA 1st District Court of Appeal.
thereto). Tesla gave Hothi no prior notice of the petition's filing, and consequently Hothi was
11
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Musk's Defamatory Statement thus alleged three separate acts of criminal conduct by Hothi:
2
3 that he 1) "actively harassed" Tesla employees, 2) "hit one of our people" (James), and 3) "almost
4 killed Tesla employee~," plural (emphasis added). Because James was the only Tesla employee
5 allegedly hit during the February incident, the third charge necessarily accused Hothi of also "almost
6 killing" at least one (if not all three) of the Tesla employees involved in the April roadway incident.
7 Greenspan republished the exchange on Twitter.
Musk's History of Maliciously Attacking Critics - Musk's Motion is but the latest example
8
9 of his famous habit of attacking critics of him or Tesla. Among many examples are the Harassment
10 action and Unsworth v. Musk (N.D. Cal. May 10, 2019) 2019 Westlaw 45431 JO, **2-3 (after cave-
Document received by the CA 1st District Court of Appeal.
diver who helped rescue a stranded youth soccer team derided Musk's appearance as a "PR stw1t" that
11
12 "had absolutely no chance of working," Musk in a series of Tweets called him a pedophile and child
13 rapist who moved from the UK to Thailand for its sex trade).
14
ARGUMENT
15
This Court evaluates an anti-SLAPP motion through a two-step process. (Monster Energy Co.
16
v. Schechter (2019) 7 Cal. 5th 781, 788.) "Initially, the moving defendant bears the burden of
17
establishing that the challenged allegations or claims 'arise from' protected activity in which the
18
defendant has engaged." (Park v. Board of Trustees of Cal. St. Univ. (2017) 2 Cal. 5th 1057, 1061,
19
cleaned up.) "If the defendant carries its burden, the plaintiff must then demonstrate its claims have at
20
least 'minimal merit."' (Id.; see also Overstock.com, Inc. v. Gradient Analytics, Inc. (2007) 151 Cal.
21
App. 4th 688, 699 (hereafter "Overstock.com").) The court accepts as true the evidence favorable to
22
plaintiff and evaluates defendant's evidence only to detennine whether it defeats the plaintiffs as a
23
matter of law. (Bently Resen1e L.P. v. Papaliolios (2013) 218 Cal. App. 4th 418, 425-426, citation
24
omitted (hereafter "Bently").)
25
26
27
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Musk Does Not Meet His Burden of Showing Any of His Defamatory Remarks 'Arise
From' Protected Activity.
2
A. None of Musk's three accusations of criminal conduct were made 'in connection with a
public issue or an issue of public interest.'
3
Where a defendant seeks protection under Cal. Code Civ. Pro.§ 425.16(e)(4) for statements on
4
5 a supposed matter of public interest that were made not in a public forum but between individuals, the
6 proper test is the two-step analysis of FilmOn.com v. Double Verify, inc. (2019) 7 Cal 5th 133 (hereafter
7 "FilmOn.com"). (Murray v. Tran (2020) 269 Cal. Rptr. 3d 231, 243-45 (hereafter "Murray"), citing
8 FilmOn.com.) "First, we ask what 'public issue or issue of public interest' the speech in question
9 implicates - a question we answer by looking to the content of the speech." (Id. at p. 244, quoting
10 FilmOn.com at p. 149-150, brackets omitted.) "Second, we ask what functional relationship exists
12 no way satisfies that test.
Document received by the CA 1st District Court of Appeal.
between the speech and the public conversation about some matter of public interest." (Ibid.) Musk in
11
1. Musk's charges of criminal conduct do not 'contribute to the public debate'
about any issue of public interest.
13
14
To ensure subsection (e)(4) is applied "only to constitutionally protected expression," the court
15
must "carefully examine" the statements' content "to ensure they arc sufficiently connected to an
16
existing public discussion or debate." (Murray, supra, 269 Cal. Rptr. 3d at p. 244, citing FilmOn.com
17
at p. 145, court's emphasis.) "[A] 'public controversy' does not equate with any controversy of interest
18
to the public. (Time, inc. v. Firestone (1976) 424 U.S. 448, 454.) "For example, a divorce action
19
between the scion of one of America's wealthier industrial families and his Palm Beach society wife
20
may have piqued the public's interest but was not a public controversy." (Weinberg v. Feisel (2003)
21
110 Cal.App.4th 1122, 1131-1132 (citing Firestone).)
22
As the FilmOn.com court warned, "virtually always, defendants succeed in drawing a line
23
however tenuous connecting their speech to an abstract issue of public interest." (FilmOn.com, supra,
24
269 Cal. Rptr. 3d at p.150.) Sure enough, Musk identifies three supposed areas of public interest to
25
which his accusations relate: Tesla's "Autopilot" feature, the way Tesla treats its critics, and the actions
26
"of a member of the $TSLAQ community." (Motion at 7). Musk further claims the first two topics
27
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"concerned the actions of a high-profile public company and businessman and thus was a clear matter
2
of public interest." (Ibid). However, it is not enough that a statement simply "refer to a subject of
3
widespread public interest:" rather, "the statement must in some manner itself contribute to the public
4
debate." (FilmOn.com, supra, 7 Cal 5th at p.150, emphasis added; citations omitted.) In other words,
5
the court must ask whether the defendant "participated in, or furthered, the discourse that makes an
6
issue one of public interest." (Id. at p. 151, citation omitted.)
7
Musk's accusations of criminal conduct by Hothi in no way advanced any of the issues of public
8
interest his Motion tries to identify. They did not remotely implicate Tesla's marketing of Autopilot,
9
nor contribute to any public debate about TSLAQ in general nor Hothi (or any other Tesla critic) in
10
particular. Instead, they simply leveled three false charges as a means of tarring Hothi's reputation,
11
12
Document received by the CA 1st District Court of Appeal.
including that he "almost killed" multiple Tesla employees on several occasions. Importantly, the
accusations were made in a private, one-to-one email. (See FilmOn.com, supra, 7 Cal. 5th at p. 153
13
[defendant did not issue allegedly defamatory reports about plaintiff's company to the wider public,
14
but privately, to a coterie of paying clients].) Musk's private slandering of Hothi at most refers to an
15
issue of interest among a small, select group of people.
16
And, the mere fact that a speaker is globally famous does not transmute his dispute into an issue
17
of public interest. (Hailstone v. Martinez (2008) 169 Cal. App. 4th 728, 736; Grenier v. Taylor (2015)
18
234 Cal. App. 4th 471, 481-82 (hereafter "Grenier").)
19
2. Musk's accusations in his one-on-one email sniping with Greenspan bear
no 'functional relationship' to any issue of public interest.
20
Even assuming Musk could make the first showing in the FilmOn.com analysis, his Motion fails
21
22 the second, which asks "what functional relationship exists between the speech and the public
23 conversation about some matter of public interest." (FilmOn.com, supra, 7 Cal. 5th at pp. 149-50.) That
24 analysis "must include a consideration of the context or specific circumstances in which the statement
25 was made, 'including the identity of the speaker, the audience, and the purpose of the speech."'
26 (Murray, supra 269 Cal. Rptr. 3d at p. 244, quoting FilmOn.com, supra, 7 Cal. 5th at pp. 140, 151-52,
27 court's emphasis.)
28
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Musk's email exchange with Greenspan reflects a private sniping match that did not further
2
"some public conversation about some matter of public interest." (Murray, supra, 269 Cal. Rptr. 3d at
3
p. 244, quoting FilmOn.com, 7 Cal. 5th at pp. 140, 149-152.) While a few other parties originally were
4
copied, by the time Musk made his accusations, he had removed the last third party (his brother Kimbal)
5
and the exchange included only him and Greenspan. In light of the speaker, the audience, and the
6
speech's purpose, it obviously was not intended to further any "public conversation" on any issue of
7
public interest, and Musk's Declaration does not suggest otherwise. Musk was simply defending his
8
personal reputation and conduct against Cireenspan's aggressive statements in a private email exchange
9
and chose to do so by assassinating Hothi' s character.
10
Caselaw applying FilmOn.com confirms that Musk's accusations are not protected under
11
Document received by the CA 1st District Court of Appeal.
subdivision (e)(4). (Murray, 269 Cal. Rptr. 3d at pp. 247-49 [emails calling dentist's work "below par"
12
did not meet FilmOne.com's "functional relationship" test because, although involving a subject of
13
public interest (the quality of dental care), the emails were sent only to a limited number of persons,
14
and defendant "presented no evidence showing he sent these emails to warn patients or other users of
15
[plaintiff's] services, or that he intended others to do so"J; Wilson v. Cable News Network, Inc. (2019)
16
7 Cal. 5th 871, 899-903 [employer's comments to plaintiffs supervisor and prospective future
17
employers that plaintiff had committed plagiarism were not protected under (e)(4) because they were
18
about one instance of plagiarism, not the larger issue of media honesty; a defendant seeking catch-all
19
protection "must show not only that its speech refen-ed to an issue of public interest, but also that its
20
speech contributed to public discussion or resolution of the issue"]; compare Yang v. Tenet Healthcare,
21
Inc. (2020) 48 Cal. App. 5th 939 948 [allegedly defamatory statements about surgeon's qualifications,
22
competence, and medical ethics were protected under subsection (e)( 4) where made to other health care
23
providers, medical practices, plaintiff's patients, and the general public; speech to the public about a
24
doctor's qualifications furthers public discourse on that matter," court's emphasis].) Even were Hothi
25
a limited public figure for purposes of debating the production and safety record of Tesla cars, that does
26
not mean he is a public figure for all purposes. Hothi is a public person only for topics relevant to such
27
28
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production and safety. On what subject of public interest was Musk commenting? Clearly, he was not
2
trying to warn other companies that Hothi might try to harass or kill their employees.
3
While "public interest" is not limited to governmental matters, the purported constitutionally
4
protected activity "must, at a minimum, be connected to a discussion, debate or controversy." (Grenier,
5
supra, 234 Cal. App. 4th at 482, citation omitted.) "Merely informational" statements are not protected,
6
because protecting such statements "in no way further[s] 'the statute's purpose of encouraging
7
participation in matters of public significance."' (Ibid., court's emphasis, citing Du Charme v.
8
International Brotherhood of Electrical Workers (2003) 110 Cal. App. 4th 107, 115.) In complaining
9
to Greenspan, Musk was not participating in public debate or discussing matters of public significance.
10
He was instead lashing out; concocting charges of criminal conduct against a graduate student who had
11
12
Tesla employees and "almost killed" two or more of them, simply do not fall within the anti-SLAPP
13
protections of§ 425.16(e)(4). 1
14
B. There was no pending litigation sufficient to invoke subdivision (c)(2).
15
Musk invokes§ 425.16(e)(2), arguing that his charges dealt with "issues that were pending
16
before the Court." (Motion at 7-9). He is incorrect. Section 425.16(e)(2) "protects only those 'written
17
or oral statements or writings made in connection with an issue under consideration or review"' by an
18
official body, including a court. (laker v. Bd. ofTrs. of Cal. State Univ. (2019) 32 Cal. App. 5th 745,
19
765-66, cleaned up, quoting Rand Resources, llC v. City o_fCarson (2019) 6 Cal.5th 610, 627.) "The
20
subdivision thus appears to contemplate an ongoing-----or, at the very least, immediately pending
21
official proceeding." (Ibid.) "Conversely, if an issue is not presently 'under consideration or review'
22
by such authorized bodies, then no expression-----even if related to that issue----could be 'made in
23
connection with an issue under consideration or review."' (Ibid.)
24
25
1
26
Musk's knowledge that Greenspan might re-broadcast his charges to the world docs nol render them "public
conversation about a matter of public interest." The two incidents simply were not "of public interest." and
Musk's insistence on conducting his smear campaign through Greenspan does not change this fact.
27
28
Document received by the CA 1st District Court of Appeal.
the temerity to suggest the emperor has no clothes. Musk's false charges that Hothi "actively harassed"
11
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Here, Tesla abandoned its claim against Hothi by voluntarily dismissing its Harassment Action
2
on July 26, 2019. And while Hothi would later file a motion for fees, that motion had not yet been filed
3
on Aug. 7, 2019, when Musk sent his e-mail, and was ancillaiy to the case in any event. At the time of
4
Musk's accusations, there simply was no "issue under consideration or review" by any court. Musk
5
argues that an evidence-preservation letter (which he inaccurately calls a "demand letter," Motion at
6
8:21-23) means his accusations were made "in connection with" impending litigation. However, Musk
7
does not claim he knew of the letter at the time. More importantly, the litigation Hothi was considering
8
was unavailable to Hothi because harassment actions as a matter of law may not give rise to a
9
malicious-prosecution claim. (Siam v. Kizilbash (2005) 130 Cal. App. 4th 1563, 1574 [civil harassment
10
actions are not subject to malicious prosecution claims].) Where litigation not only was untiled but as
11
12
Document received by the CA 1st District Court of Appeal.
a matter of law could never be filed, it simply cannot be said to be "impending." It would be manifestly
unfair to extend protection to Musk for statements he made about Hothi after Tesla withdrew from
13
litigation because Musk and Tesla were unwilling to back up Tesla's allegations with video and
14
photographic evidence Tesla admitted to having in its possession
15
evidence Musk (and Tesla) still
refuse to show to this day, even in support of Musk's Motion.
16
IL
Hothi Has a High Probability of Prevailing on the Merits of His Claim.
17
A. Musk's allegations constitute defamation per se.
18
"Defamation consists of, among other things, a false and unprivileged publication, which has a
19
tendency to injure a party in its occupation." (Summit Bank v. Rogers (2012), 206 Cal. App. 4th 669,
20
695 (hereafter "Summit Bank"), citations omitted.) Accusation of criminal conduct constitute
21
defamation per se under Cal. Civ. Code§ 46.1. (De!ifartini v. DeMartini (On Reh 'g) (9th Cir. Dec. 23,
22
2020) . . . . . . . . . F. App'x
23
, 2020 WL 7658347, *2; Barnes-Hind, Inc. v. Superior Court (1986) 181 Cal.
App. 3d 377 ["Perhaps the clearest example of defamation per se is an accusation of a crime"], cleaned
24
up.) Hothi's claims certainly have at least the "minimal merit" needed to defeat Musk's anti-SLAPP
25
motion. (Overstock.com, supra, 151 Cal. App. 4th at p. 699).
26
27
28
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Musk does not deny he accused Hothi of improper and unlawful conduct under California law
2
harassment/stalking (Cal. Penal Code § 646.9( a)), reckless driving (Cal. Yeh. Code § 23103( a)), and
3
assault with a deadly weapon, his car (Cal. Penal Code§ 245(a)(I )); People v. Bipialaka (2019) 34 Cal.
4
App. 5th 455,459. Musk's charges that Hothi "actively harassed" Tesla employees, and "almost killed"
5
some, are both actionable. Hothi provides prima facia evidence that the statements are false.
6
8. Musk fails to establish any valid defense or llfivilege.
7
1. Musk fails to raise any argnment relating to his charge that Hothi "almost
killed" Tesla emplovees other than James.
8
Musk, in seeking to establish the truth of his "almost killed" charge, discusses that statement
9
Jo solely in the context of James and the Februaty 2019 parking lot incident. (Motion at 11 ). But he ignores
that by its plain terms, his statement accused Hothi of almost killing two or more Tesla "employees."
Document received by the CA 1st District Court of Appeal.
11
12 Although another Tesla employee was present, Musk does not allege that Hothi came near the other
13 employee. In fact, in his declaration, James testifies the other employee stayed back to photograph the
14 exchange. (Declaration of Tyler James, ii 3 ["I would be the contact officer and he would be the cover
15 officer to obtain photographs."].) Because Musk has failed to brief any issue pertaining to his "almost
16 killed" charge against Tesla employees other than James, he cannot obtain dismissal on that portion of
17 Hothi's claim. (Behr v. Redmond (2011) 193 Cal. App. 4th 517, 538 [failure to brief issue waives it].)
18 Even were this Court to grant the rest of Musk's Motion, at a bare minimum the case must go forward
19 as to the other "employees" whom Musk claimed Hothi "almost killed."
20
2. Musk's other statements were not opinion but contained provably false
assertions of fact.
21
As to his other statements, Musk's main argument is that they were true, or protected opinion.
22
(Motion at 9-11 ). Again, he is incorrect.
23
Since Milkovich v. Lorain Journal Co. (1990) 497 U.S. I, even something couched in terms of
24
opinion may be actionable where it implies an assertion of objective fact. (Bently Reserve L. P., supra,
25
218 Cal. App. 4th at p. 426, citing Milkovich, 497 U.S. at p. 18-19 and Overstock.com, supra, 151 Cal.
26
App. 4th at p. 701.) "The key is not parsing whether a published statement is fact or opinion, but
27
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'whether a reasonable fact finder could conclude the published statement declares or implies a provably
2
false assertion offact."' (Id., quoting Franklin v. Dynamic Details, Inc. (2004) 116 Cal. App. 4th 375,
3
385, citing Milkovich, 497 U.S. at p. 19, emphasis added.) "A court must put itself in the place of an
4
average reader and determine the nature and probable effect of the statement." (Bently, supra, 160 Cal.
5
Rptr. 3d at p. 427, cleaned up.)
6
Musk's statements to Greenspan are actionable because a reasonable factfinder easily could
7
conclude that each declares and/or implies a provably false assertion of fact. Musk declared that Hothi
8
engaged in unlawful conduct under Cal. Civ. Code § 527.6 and/or § 527.8 in that he "actively
9
harassed ... Tesla employees." Indeed, Musk argues the harassment statements, and his complaint that
10
James was strnck, are trne - thus establishing the allegations as ones of fact, not protected opinion.
11
12
Document received by the CA 1st District Court of Appeal.
(Motion at 10-11 ). (As Hothi's Declaration makes clear (ilil 33-34, 37), at no time did he ever "harass"
any Tesla employee). Musk's false view that Hothi "actively harassed ... Tesla employees," based on
13
implied, undisclosed facts, thus is actionable as a provably false assertion of fact.
14
Bently precisely supports that conclusion. There, a landlord sued a fonncr tenant who posted a
15
derogatmy Yelp review including complaints that poor building conditions "(likely) resulted in the
16
death of three tenants ... and the departure of eight more." Denying defendant's anti-SLAPP motion, the
17
Court of Appeal first rejected his hedging use of "likely" as immaterial in trying to insulate his
18
comments from liability. (218 Cal. App. 4th at p. 428, citing Milkovich, 497 U.S. at p. 18 and Weller v.
19
ABC (1991) 232 Cal. App. 3d 991,1004.) The court noted that defendant "went out of his way to win
20
credibility with his audience" by describing his post as "[his] own first-hand experience with this
21
building, and its owners," gained over "many years." (Bently, supra, 218 Cal. App. 4th at pp. 428-429 .)
22
As the court noted, "[sluch assurances suggest facts are being communicated, not opinions. (Id. at p.
23
429, citing Elder, Defamation: A Lawyer's Guide (2012) Fact Versus Opinion, § 8:2 [representation
24
that speaker has "private, firsthand knowledge relevant to the fact/opinion distinction] and Super Future
25
Equities, Inc. v. Wells Fargo Bank Minnesota, N.A. (N.D. Tex. 2008) 553 F. Supp. 2d 680,689 [where
26
27
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defendant "claims to verify the accuracy of the information he posts," his online "statements are not
2
protected opinions"].)
3
The comt further pointed to Wong v. Jing (2010) 189 Cal. App. 4th 1354, in which a dentist
4
sued for defamation over a Yelp post. The Wong court found that plaintiff carried her burden under the
5
second anti-SLAPP prong because the detail defendant gave under the guise of personal knowledge
6
would allow a reasonable jury to conclude that the review falsely implied various acts of wrongdoing
7
by the dentist. (Bently, supra, 218 Cal. App. 4th at pp. 432-433, citing Wong, 189 Cal. App. 4th at pp.
8
1372-75.) Applying that rule, the comt noted the tenant's comment was "every bit as factually specific
9
and earnest as the Yelp review in Wong," containing statements "that could reasonably be understood
10
[plaintiffs] Building as a future residential choice." (218 Cal. App. 4th at pp. 433.)
12
Document received by the CA 1st District Court of Appeal.
as conveying facts - each provable and each meant to be used by prospective tenants to evaluate
11
So, too, with Musk's comments. His "factually specific and earnest" comments to Greenspan
13
could be reasonably understood as having conveyed facts that Hothi drove so recklessly as to nearly
14
kill several employees, and that he unlawfully harassed Tesla's employees. Musk spoke as someone in
15
a position to know the veracity of his accusations. Indeed, he claims he believed the accusations were
16
true, and claims his information came from employee reports. 2
17
3. No affirmative defenses salvage Musk's statements.
18
Where defendant raises an affirmative defense in its anti-SLAPP motion, "the court, following
19
the summary-judgment-like rubric, generally should consider whether the defendant's evidence in
20
support of an affinnative defense is sutlicient, and if so, whether the plaintiff has introduced contrary
21
evidence, which, if accepted, would negate the defense." (Long Beach Unified Sch. Dist. v. Margaret
22
Williams, LLC (2019) 43 Cal. App. 5th 87, 100, as mod/fied on denial of reh 'g (Dec. 31, 2019), citing
23
Bently, supra, 218 Cal. App. 4th at pp. 434.)
24
25
26
2
Musk has uot provided these reports. If they exist, they may have been prepared only after Musk requested
27 them, or may have been fabricated in an effort to cnrry favor with the famously short-tempered CEO.
28
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CASE No. RG20069852
OPPOSITION 'f(} SPECIAL MOTION TO STRIKE
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a)
Truth
2
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The substantial truth doctrine does not apply.
including "substantial truth"
is a complete defense to a libel claim. (Summit Bank,
3 supra, 206 Cal. App. 4th at p. 697. But "not every word of an allegedly defamatory publication has to
4 be false and defamatory" to be actionable. (Bently, 218 Cal. App. 4th at p. 434, citing .Masson v. New
5 Yorker Magazine, Inc. (1991) 501 U.S. 496, 510 ["the test of libel is not quantitative; a single sentence
6 may be the basis for an action in libel even though buried in a much longer text"], cleaned up.) Musk's
7 assertion of the defense (Motion at 10) fails.
Where the defamatory statement alleges criminal conduct, and defendant fails to offer evidence
8
9 to support its truth while plaintiffs evidence rebuts its factual underpinnings, plaintiff meets her
JO "minimal burden" of disproving the "substantial truth" defense. Thus, in Bently, the court noted that
the "standout" among defendant's alleged defamatory remarks was his comment that the "deaths" of
Document received by the CA 1st District Court of Appeal.
11
12 three former building tenants were "likely" connected to plaintiffs conduct. However, defendant
13 presented nothing beyond speculation to support that, and plaintiff offered directly rebutting evidence,
14 i.e., that two of the tenants were still alive and the third died from pneumonia and cancer. (Bently,
15 supra, 218 Cal. App. 4th at p. 435.) Defendant's statement thus could in no way be dismissed as a
16 "slight inaccuracy," and plaintiff carried its "minimal burden under the anti-SLAPP statute as to
17 probable merit of their libel claim." (Ibid).
The same analysis compels denial of Musk's Motion. While Musk published to Greenspan that
18
J9 Hothi "actively harassed" Tesla employees, Hothi's Declaration affirmatively establishes that he did
20 not. Musk not only failed to present evidence to the contrary, but in fact Tesla quickly dismissed the
21
Harassment Action when the court ordered it to disclose any such evidence. Similarly, while Musk
22 alleged that Hothi "sideswiped" and "almost killed Tesla employees," Hothi's Declaration establishes
23 that as fiction - and Musk offers no contrary evidence. Importantly, Musk has audio and video evidence
24 of both the parking lot incident and roadway incidents, but nonetheless decided not to submit that
25 evidence in support of his argument that the allegations are substantially true. Simply put, Musk's
26 allegations of criminal and near-criminal conduct by Hothi are not even substantially true.
27
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b) Hothi is not a public figure, but e11en if he were, there is ample evidence of
actual malice.
2
For a plaintiff to be a limited purpose public figure, "there must be a public controversy about
3
a topic that concerns a substantial number of people" and "the plaintiff must have voluntarily acted to
4
influence resolution of the issue of public interest." (Grenier, supra, 234 Cal. App. 4th at p. 484, citation
5
omitted.) Even if plaintiff has thrust himself into the public eye, "the alleged defamation must be
6
gennane to [his] participation in the public controversy" to render plaintiff a limited-purpose public
7
figure. Id.
8
In Grenier, though plaintiff sought public attention as a pastor, author, and radio host, he was
9
deemed not a limited-purpose public figure for purposes of defendant's allegations of child abuse, child
10
molestation, tax evasion and theft. The plaintiff"must have voluntarily acted to influence the resolution
11
12
such a controversy." (Id. at p. 485.)
13
Document received by the CA 1st District Court of Appeal.
of a discrete public controversy. The subject of morality is too general and amorphous to qualify as
Musk's asserts a general "public debate" regarding Tesla's vehicles and manufacturing
14
processes (Motion at 12-13), but frames the public controversy at too generic a level. Just as the overly
15
broad definition in Grenier would have transfmmed all clergy into all-purpose public figures (234 Cal.
16
App. 4th at 485), Musk's theory would make anyone who Tweets about Tesla into a general-purpose
17
public figure, fair game for defamation at will by the bullying billionaire.
18
Nor are Musk's allegations gennane to any public controversy. While Musk asserts that because
19
his defamatory comments came in the context of an email exchange with Greenspan, Greenspan is
20
therefore allowed to set the parameters of germaneness, Musk offers no case law to support that novel
21
theory. In any event, Musk makes the same analytical mistake he made when he erroneously asserted
22
that the hero of the Thai cave rescue was a limited-purpose public figure. In Unsworth, supra, the court
23
rejected Musk's argument because "there is simply no credible connection" between pedophilia and
24
the cave rescue, such that Unsworth was a public figure for Musk's assertions of criminal conduct.
25
(Unsworth, supra, 2019 Wcstlaw 8220721, at p. 7.) Herc too, there is simply no credible link between
26
27
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the public debate over Tesla and its business practices, and the allegation that Hothi "almost killed"
2
Tesla employees whom he happened to spot while driving on a public roadway.
3
In any event, even ifHothi is a public figure, actual malice abounds here. Musk gives this Court
4
an incorrect definition of it (Motion 14-15) omitting the part that is fatal to his argument. As courts
5
(including this one) have made clear,
6
The malice necessary to defeat a qualified privilege is "actual malice" which
is established by a showing that the publication was motivated by hatred
or ill will towards the plaintiff or by a showing that the defendant lacked
reasonable grounds for belief in the truth of the publication and therefore
acted in reckless disregard of the plaintiffs rights.
7
8
9
(Duongv. JTT Educ. Svcs., Inc., Super. Ct. No. RG14724442 (May 5, 2016), at p. 7, quoting (Lundquist
10
44 Cal. App. 3d 926, 936.)
12
Document received by the CA 1st District Court of Appeal.
v Reusser (1994) 7 Cal. 4th 1193, 1213, (emphasis added); accord Roemer v. Retail Credit Co. (1975)
11
Here, there is ample evidence that Musk was motivated by hatred or ill will. He caused Tesla
13
to file the baseless Harassment Action. On the day Tesla did so, Musk published a photo of a lewd
14
Tesla identification badge featuring a cartoon character in the shape of a penis and buttocks, with the
15
character labeled "Totally Legitimate" and the classification labeled "Espionage." (Hothi Deel., ii 41.)
16
As Hothi notes, this insult was obviously aimed at him. (Ibid.) Musk's consistent modus operandi has
17
been to publicly slur those whom he perceives to be critics of him or his company, with Vernon
18
Unsworth, the cave diver, being the paradigmatic example. (Ibid; see also Ex. 9 thereto.) Even the
19
undersigned counsel is not immune. (See Musk Deel., Ex A, at p. I.) Musk's Motion here drips with
20
contempt for Hothi, whom he (without evidence) calls a "conspiracy theorist obsessed with spreading
21
misinformation online about Tesla." (Motion at I :3-5.) And this lawsuit was prompted by Musk's
22
utterly baseless invention of the accusations that Hothi "actively harassed" and "almost killed" multiple
23
Tesla employees.
24
CONCLllSION
25
For the reasons set forth above, the Court should deny Defendant's Special Motion and allow
26
27 Plaintiffs action to proceed.
28
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Respectfully Submitted,
2
By
Date: January 11, 2021
3
D. Gill Sperlein
4
THE LAW OFFICE OF D. GILL SPERLEIN
5
Lawrence J. Fossi (pro hac vice)
6
Attorneys for Plaintiff Randeep Hothi
7
8
9
10
Document received by the CA 1st District Court of Appeal.
11
12
13
14
15
16
17
18
19
20
21
22
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CASE No. RG20069852
OPPOSITION 'f(} SPECIAL MOTION TO STRIKE
AA635
PDF Page 38
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Exhibit Number 16
FILED BY FAX
ALAMEDA COUNTY
D. GILL SPERLEIN, SBN 172887
THE LAW OFFICE OF D. GILL SPERLEIN
2 345 Grove Street
San Francisco, CA 94102
3 Telephone: (415) 404-6615
Facsimile: (415) 404-6616
4 g:ill@sperleinlaw.com
January 12, 2021
CLERK OF
THE SUPERIOR COURT
By Shabra lyamu, Deputy
CASE NUMBER
RG20069852
5 LAWREN CE J. FOSSI, TX SBN 07280650 (pro hac vice)
25 Hawthorn Lane
6 Bozeman, MT 59715
Telephone: (713) 854-4027
7 lawrence.fossi(moutlook.corn
8 Attorneys for Plaintiff Randeep Hothi
9
SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF ALAMEDA
UNLIMITED JURISDICTION
10
12
13
14 RANDEEP HOTH!, an individual,
15
Plaintiff,
16
V,
17
Case No: RG20069852
ASSI.GNED FOR ALL PURPOSES TO:
JUDGE JULIA SPAIN
DEPT. 520-HAYWARD HALL OF
JUSTICE
)
ELON MUSK, an individual,
18
)
)
)
)
)
)
Defendant.
)
)
)
)
DECLARATION OF RANDEEP HOTIII IN
SUPPORT OF HIS OPPOSITION TO
DEFENDANT'S SPECIAL MOTION TO
STRIKE
)
19
) BY FAX
20
)
)
)
)
)
21
22
Judge: Julia Spain
Dept.: 520
Date: Janumy 27, 2021
Time: I :30 p.rn.
23
24
25
26
Document received by the CA 1st District Court of Appeal.
11
27
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CASE No. RG20069852
DECLARATION OF RANDEE!' HOTHI
AA636
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I, Randeep Hothi, declare as follows:
2
1.
3
I am the plaintiff in this action. At all times relevant to this action, I have been a graduate
student in Asian Languages & Cultures at the University of Michigan (and recently was admitted to a
4
joint degree program that includes Anthropology), with a pemianent residence in Fremont, California.
5
2.
6
I am over the age of eighteen and I make this declaration based upon personal, firsthand
knowledge, and if called and sworn as a witness, I could and would testify competently about the
7
matters set forth in this declaration.
8
3.
9
Defendant Elon Musk describes me as "a conspiracy theorist" who has spread
"misinformation online about Tesla." [Motion at 1:3-5] He offers no evidence for these assertions, and
10
both are false. I regard myself as a citizen journalist whose research and data gathering have revealed
11
12
Document received by the CA 1st District Court of Appeal.
discrepancies in claims Tesla, Inc. ("Tesla") and its CEO, Defendant Musk, have made about Tesla's
manufacturing operations, technological capabilities, financial health, and treatment of its employees
13
and customers.
14
My Skepticism about Tesla's 'Alien Dreadnought' & Full Selt~Driving Claims
15
4.
16
In 2015, I developed an interest in Tesla's business and, in particular, Tesla's claims
about its technology. Over time, I became skeptical of several of those claims, including that Tesla was
17
developing revolutionary manufacturing capabilities and that Tesla was close to achieving full self-
18
driving capability.
19
5.
20
In March of 2017, I created a Twitter account under the handle of@skabooshka. In my
Twitter postings, I shared my skepticism about Tesla's claims. At all times in those postings, I
21
attempted to remain anonymous.
22
6.
23
In August of 2016, Musk began claiming that Tesla's manufacturing processes for its
forthcoming Model 3 car would be hyper-automated, able to function largely without human input, and
24
superior to those of other automobile manufacturers. Musk called these processes "alien dreadnought."
25
7.
26
I was skeptical of Musk's "alien dreadnought" claims and believed Tesla's
manufacturing capabilities were actually inferior to those of most other automobile manufacturers.
27
28
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2
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In February 2017, I read Tesla's announcement in its quarterly update letter that it
expected to exceed a weekly production rate of 5,000 Model 3 cars by year-end, and to achieve a weekly
3
rate of 10,000 at some point in 2018. Tesla repeated these claims in May and August of 2017.
4
9.
5
Also in February of2017, Tesla claimed it was on track to begin Model 3 production in
July. Tesla did deliver Model 3 cars in July, but only 30, and those only to employees. r later learned
6
the cars delivered in July were, in significant part, built by hand, which practice continued at least into
7
September. Attached as EXHlBlT 1 is a newspaper article that I read at the time, one of several,
8
reporting that the Model 3 cars were built by hand, from which I fonned my opinion about this matter.
9
I 0.
10
By early 2018, I had begun calculating the production at Tesla's Fremont factory, where
the Model 3 was made. I did so by means of tracking the flow of vehicles leaving the factory, counting
11
12
Document received by the CA 1st District Court of Appeal.
newly-produced vehicles in the factory's storage lots, and speaking with employees at the public Tesla
sales center located on the factory grounds. From making these observations, r determined that Tesla's
13
production rate was significantly below the rate promised by Tesla, and I shared my findings on Twitter.
14
I 1.
15
By May of 2018, Tesla had backtracked significantly on its earlier promises. It
announced in its QI 2018 quarterly update letter, which I read, that it was targeting a Model 3 weekly
16
production rate of 5,000 "in about two months."
17
12.
18
In June of 20 I 8, I observed Tesla's constmction of a tent in which to place an assembly
line for the Model 3. Like hand-building the early Model 3 cars, Tesla's use of a tent structure seemed
19
to me a far cry from an "alien dreadnought" factory, and I tweeted about it.
20
13.
21
I was also skeptical about "full self-driving," the sale of which feature has been a
material and important component of Tesla's revenues based on its own reporting.
22
I4.
23
In October of 2016, Musk stated that by the end of 2017, a Tesla vehicle would be able
to drive from Los Angeles to New York City with no human intervention.
24
15.
25
As of the date of this Declaration, Tesla charges customers $10,000 for purchasing its
"full self-driving" (a capability that does not yet exist; driver attention and intervention is required).
26
According to Tesla's SEC filings, which I occasionally review, Tesla has collected hundreds of millions
27
28
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of dollars in revenues from the sale of its "full self-driving" feature, promising its customers that such
2
capability was imminent.
3
The February 21, 2019 Parking Lot Incident
4
16.
5
On February 21, 2019, I lawfully entered a publicly accessible area of Tesla's Fremont
factory and showroom grounds with the intention of visiting the showroom and asking a salesperson
6
about the availability of Tesla cars in various colors and with various options. I decided to rest for a
7
few moments in my car and gather my thoughts before visiting the sales center on the factory grounds.
8
I parked in an area accessible to the public, with my car backed into the parking space.
9
17.
10
While in my car, a Tesla vehicle parked nearby. A man exited the Tesla vehicle,
approached my car, and began knocking on my driver's side front window. In legal pleadings, Tesla
11
12
Document received by the CA 1st District Court of Appeal.
has identified the man as a Tesla security officer named Tyler James. I did not notice any markings on
the Tesla vehicle that would identify it as a Tesla security vehicle, nor did it appear to me that Mr.
13
James was wearing any uniform that would identify him as a Tesla security officer.
14
18.
15
I now believe Tesla sent Mr. James to confront me because Tesla had earlier identified
me from the license plate on my car, and knew I was reporting on Tesla's production rate.
16
19.
17
On April 19, 2019, Tesla obtained a temporary restraining order against me, with no
prior notice to me, and without me having an opportunity to appear to contest its issuance, in the case
18
of Tesla, Inc. v. Randeep Hothi, Case No. RG19015770, Superior Court of the State of California (the
19
"Harassment Action"). Tesla's petition was filed under CCP § 527.8, which allows for expedited
20
injunctive relief in instances of "workplace harassment." A true and complete copy of the petition is
21
attached hereto as EXHIBIT 2.
22
20.
23
The Harassment Action was focused on an incident on April 16, 2019, which l will
describe later in this Declaration. However, the Harassment Action mentioned the February 21, 2019
24
incident as well.
25
21.
26
On May 7, 2019, with the Harassment Action pending, I went to the Fremont Police
Station and requested a copy of the police reports relating to the February 21, 2019 event. A true and
27
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complete copy of the police reports the Fremont Police gave me is attached as EXHIBIT 3. I have
2
added an exhibit number and page numbers in the lower right-hand comer of each page.
3
22.
4
My belief that Tesla had earlier identified me from the license plate on my car is
supported by the March 15, 2019 police report prepared by Officer Mathew Kerner, who took
5
"Statement #2 from Tyler James" and wrote:
6
On 3/15/19, I took another statement from James due to him saying he has further
infonnation. In essence, he told me the following: On 02/21 /l 9, at approximately
1411 hours, Tesla security got a hit on their license plate readers that there was
a vehicle in the lot that was not supposed to be on the property. [Ex. 3, p. 5.]
8
23.
9
10
My belief is also supported by Defendant's sworn statement in this lawsuit:
During the course of 2018 and 2019, I became aware through Tesla employees
that an individual was posting photos and videos of the Tesla Fremont factory
employee parking lots and logistics lots on Twitter. [Declaration of Elon R.
Musk in Support of His Motion to Strike the Complaint, ~14]
11
12
24.
13
Document received by the CA 1st District Court of Appeal.
7
After Mr. James knocked on my window, I decided that rather than risk any
confrontation, I would leave the factory site. I drove forward slowly out ofmy parking space and exited
14
the Tesla parking lot. I did not believe then and do not believe now that I struck Tyler James or any
15
other person. If I had thought I had struck anyone, I would have stopped. I later learned that Tesla had
16
recorded the interaction, and I believe the recordings will establish that my car did not come into contact
17
with Mr. James.
18
25.
19
Mr. James is the only person who has ever claimed my car struck him, or came close to
striking him, in connection with the February 21, 2019 incident.
20
26.
21
The Harassment Action alleged (among other things) that on February 21, 2019, in the
parking lot of Tesla's Fremont facility, I had "hit Tesla's security employee" (note the singular noun:
22
just one employee) with my car and then "fled the scene" in a "reckless manner" as I exited the parking
23
lot. (EXHIBIT 2, Harassment Petition, §5.) Without any notice to me by Tesla or the Court, the Court
24
entered a TRO on the same day Tesla made the filing, ordering me to stay at least 10 yards away from
25
any Tesla vehicle with manufacturer plates within five miles of Tesla's Palo Alto headquarters and
26
setting the matter down for an injunction hearing (later delayed) on May 7, 2019.
27
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CASE No. RG20069852
DECLARATION OF RANDEE!' HOTJII
AA640
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As is clear from the police reports, the police reviewed both cell phone footage taken by
Tyler James and "video from Tesla security cameras." (EXHIBIT 3, at P. 2, i1s of narrative section.)
3
The police reports do not clearly indicate that the police detennined my car ever grazed Mr. James. The
4
police reports indicate Mr. James "had no visible injuries or bruising." (Id. at p. 5, Statement t/2 from
5
Taylor James.) In one entry, Police Officer Matthew Kerner states: "I watched the video on James'
6
work cellphone and I was unable to sec much of the incident. I did see Hothi in the vehicle, but I was
7
unable to see anything further to solidify James' statement." (Id., P.5, ill.)
8
28.
9
Officer Kerner later advised another officer: "[a]s James approached the vehicle, [Hothi]
drove away at a slow rate of speed. [Hothi's] vehicle struck .lames' knee." (id., p. 2, Narrative
10
il3,
emphasis added.) I believe Officer Kerner's statement that my vehicle stmck the knee of Mr. James is
11
12
Document received by the CA 1st District Court of Appeal.
based solely on what Mr. James told him. Further, Kerner "advised that it did not appear to be an
intentional act;" that "James also did not believe the driver of the vehicle intended to hit him with his
13
vehicle;" and "James did not have any injuries." (Id., il4, emphasis added.)
14
29.
15
In the Harassment Action, I sought production of, among other things, "Any and all
documents including photographs, video, or other recordings made of the February 21, 2019 incident"
16
and "Any and all 'documents' that describe, relate to or evidence any injuries sustained by Tyler James
17
during the February 21, 2019 incident." My counsel presented these requests to the Court in a May 23,
18
2019 letter brief regarding discovery, which I have attached as EXHIBIT 4. (See Requests Six and
19
Seven, p. 3.)
20
30.
21
Tesla opposed any production whatsoever. (See Tesla's June 3, 2019 letter brief
opposing discovery attached as EXHIBIT 5.) The Court in the Harassment Action, noting that
22
discovery is not typically allowed in such expedited harassment actions, ordered Tesla to produce
23
certain items, including the discovery sought in Requests Six and Seven, but denied others. I have
24
attached the Court's Order on Requests for Discovery dated July 1, 2019 as EXHIBIT 6 and the Court's
25
July 18, 2019 Order on Motion to Clarify Order of 7/1/19 on Requests for Discovery as EXHIBIT 7.
26
27
28
11
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It is evident from the police reports that Mr. James or Tesla or both of them attempted
to have a state prosecutor indict me for "hit and run;" however, upon reviewing the evidence, "the DA 's
3
Office declined to prosecute any crimes involving this incident." (EXHIBIT 3, p.5, Disposition
4
Section, ,is.)
5
32.
6
It is my belief, borne out by numerous materials I have read through the years, that
Defendant Musk actively manages Tesla and that nothing of any significance happens without his
7
approval if not direction. I do not believe Mr. James would have attempted to have me indicted for a
8
hit and run offense without the encouragement or, at least, assent, of Defendant Musk. I do not believe
9
Tesla would have attempted to have me indicted for a hit and run offense unless directed to do so by
10
Defendant Musk.
33.
12
At no time in making observations of and at the Tesla factory in Fremont, including on
Document received by the CA 1st District Court of Appeal.
11
February 21, 2019, and at no time thereafter to the present day, did I follow or stalk any Tesla employee
13
to or from the place of work, enter the Tesla factory, follow any employee during hours of employment,
14
or send correspondence to any Tesla employee by any means. Further, at no time to the present day did
15
I ever make telephone calls directed to any particular Tesla employee; 1may have made phone calls to
16
Tesla sales centers to gather information, but none of those phone calls would have been directed to
17
any particular employee, as I did not know (or care about) the identity of any particular Tesla employee.
18
34.
19
At no time in making observations of and at the Tesla factory in Fremont, including on
February 21, 2019, and at no time thereafter to the present day, did I ever make any statement or engage
20
in any course of conduct that would place a reasonable person in fear for his or her safety or that of his
21
or her family.
22
The April 16, 2019 Roadway .Incident
23
35.
24
On April 16, 2019, while driving from my family's home in Fremont to an appointment
in San Francisco on Interstate 880, 1noticed a Tesla vehicle bearing manufacturer plates and with roof-
25
mounted cameras enter the freeway to the right of my vehicle. 1surmised that the vehicle was recording
26
audio, video, and/or other data intended for possible use at Tesla's upcoming and highly-publicized
27
28
11
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CASE No. RG20069852
DECLARATION OF RANDEE!' HOTHI
AA642
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"Autonomy Day," scheduled for April 22, 2019, at which Tesla had announced it would show off its
2
"autonomous driving" capabilities.
3
36.
4
At the time I believed, and to this day I believe, that Tesla's self-driving technology is
profoundly flawed and dangerous to the public, especially as Musk has often made grandiose and
5
misleading claims about Tesla's "autonomous driving" capabilities.
6
37.
7
The Tesla test vehicle was headed in the same direction I was headed. I observed the
Tesla test vehicle and at times photographed it (both still photos and short videos) for approximately
8
one-half hour. At no point did I drive recklessly or endanger the safety of the Tesla vehicle's occupants.
9
At no point did I swerve toward the Tesla vehicle or attempt to trigger its automatic response systems.
10
occupant of the Tesla vehicle in fear for his or her safety, or the safety of his or her family.
12
38.
13
Shortly after observing the Tesla vehicle, I posted on Twitter some of the photographs I
had taken.
14
39.
15
Up until the filing of the Harassment Action, I was still largely anonymous on Twitter;
very few people knew that @skabooshka was Randeep Hothi.
16
40.
17
Document received by the CA 1st District Court of Appeal.
At no point did I make any statement or engage in any course of conduct that would place a reasonable
11
In the wake of Tesla obtaining its TRO, I received a torrent of abuse on Twitter and
other social media outlets. I was accused of being a terrorist, a criminal, and a homicidal maniac. Some
18
Tesla fanatics directly contacted the University of Michigan and urged it to expel me as a student.
19
41.
20
On the same day Tesla filed its petition in the Harassment Action, Defendant Musk
posted on Twitter the photo of an obscene Tesla identification badge featuring a cartoon character in
21
the shape of a penis and buttocks (sometimes referred to by commentators as "dickbutt") with the
22
character labeled "Totally Legitimate" and the classification labeled "Espionage." The photograph of
23
the badge has since been removed. However, other sources have republished the badge. I obtained an
24
exact copy from the website reddit.com at the link https://www.reddit.com/r/teslamotors/comments/
25
bf2cnp/elons_twitterprofile picture previouslyjt_was/. A true and correct copy of the identification
26
badge is attached hereto as EXHIBIT 8. Given the contemporaneous filing of the Tesla petition, and
27
28
11
-8-
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CASE No. RG20069852
DECLARATION OF RANDEE!' HOTJII
AA643
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my earlier work observing Tesla's production rates, tent construction, and Autonomy Day testing,
2
Defendant's publication of the badge was obviously an insult aimed at me.
3
My Discovery Requests, and Tesla's Repeated Refusals to Produce Evidence
4
42.
5
On May I, 2019, 1 requested a continuance of the temporary injunction hearing in the
Harassment Action. In making the request, I detailed Defendant Musk's claim at the Autonomy Day
6
event that Tesla would have one million "robotaxis" on the road within a year, and listed instances in
7
which Tesla had retaliated against its critics. I have attached the request I filed (but without the
8
voluminous exhibits to that request) as EXHIBIT 9. I asked the Court to allow limited discovery in
9
advance of the temporary injunction hearing. (Ibid.)
10
43.
11
The Court granted the continuance to May 21, 2019 and stated my "request for discovery
12
Document received by the CA 1st District Court of Appeal.
may be agreed upon by the parties or addressed at the hearing." The next day, I served a document
request with 11 items. I sought all recordings Tesla had made of the February 21 and April 16 incidents,
13
as well as police incident reports, documents showing the alleged injury to Mr. James, documents
14
showing the Model 3 occupants were Tesla employees, and Tesla's file on me. Tesla's counsel emailed
15
my counsel, declining to produce any documents, citing the general rule that in workplace violence
16
injunction cases, with their abbreviated time schedules, discovery is typically not allowed. A copy of
17
the e-mail is attached as EXHIBIT 10.
18
44.
19
In a filing with the Court, Tesla's lead counsel, relying on his own declaration, claimed
that I "and [my] followers" had "engaged in '
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false, and in my view were a classic instance of gas lighting, as I was the person who had been doxed
2
and harassed by Tesla and its many fanatics.
3
45.
4
At the scheduled hearing on May 21, 2019, Tesla's counsel was accompanied by none
of the witnesses who had sworn out declarations in support of its TRO petition. In other words, Tesla
5
brought no fact witnesses to a hearing where, as the Petitioner, it was required to meet a clear and
6
convincing evidentiary standard. I appeared with my counsel, a witness (besides myself, as I also
7
intended to testify), and documentary evidence.
8
46.
9
Because the Court's docket was congested, the Court reset the hearing for July 26, 2019.
The Court invited letter briefs from counsel addressing my discovery request. In my letter brief; I noted
10
Tesla had numerous video recordings of both incidents which would likely be dispositive about whether
11
12
declarations attached to Tesla's petition. (See EXHIBIT 4, pp. 6-8.)
13
47.
14
Document received by the CA 1st District Court of Appeal.
the alleged violent conduct occurred, and noted that the police reports appeared to contradict the sworn
Tesla continued to object to any production, claiming undue burden, privacy,
confidential business information, and attorney work product. (See EXHlBIT 5.) Further, Tesla sought
15
to exclude the public and press from the temporary injunction hearing. (Id., p. 11.) Tesla also took a
16
gratuitous swipe at my legal counsel, insinuating he was trying to run up legal fees, falsely claimed my
17
counsel had failed to offer legal support for the discovery requests, and introduced into evidence a
18
plainly inadmissible settlement communication. (id. p. I.)
19
48.
20
The Court on July I, 2019 detennined limited discovery was appropriate on the facts of
this case, and ordered both Tesla and me to produce, on or before July 16, all photographic, audio, and
21
video recordings of the two incidents. (See EXHIBIT 6, Order on Requests for Discovery, p. 5: 14-18.)
22
The Court noted that "[a]ny such recordings would be directly relevant to the claims and defenses in
23
this case." (Id. at p. 14-16.)
24
49.
25
Several days later, new counsel substituted in for Tesla and immediately filed a Motion
for Clarification or Partial Reconsideration of July 1 Discovery Order and Protective Order. A copy of
26
that Motion and Proposed Order is attached as EXHIBIT 13. Tesla for the first time argued that the
27
28
11
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CASE No. RG20069852
DECLARATION OF RANDEE!' HOTJII
AA645
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40-minute audio track from the interior mounted camera contained discussions that were personal,
2
private, sensitive, and business-confidential, and sought to exclude it from the discovery order. In its
3
form of proposed protective order, Tesla included an order that the public and press be excluded from
4
seeing or hearing any of the recordings. (Id., pp. 2:9-17, 4:5-15.)
5
50.
6
My counsel, at my direction, offered to have Tesla furnish us with a list of the portions
of the audio recording it wanted protected, and to have the Court take up the matter if Tesla and I could
7
not agree on whether to exclude such portions. (See, Hothi's Opposition to Motion for Clarification or
8
Partial Reconsideration of July I Discovery Order and for Protective Order dated July 11, 2019,
9
attached as EXHI.BIT 14, p. 4:3-8.)
51.
11
On July 18, the Court confirmed its holdings in its July I order, and promised to review
Tesla's recordings in camera for relevance. (See EXHIBIT 6.)
12
52.
13
Document received by the CA 1st District Court of Appeal.
10
Pursuant to an earlier agreement of the parties, Tesla had until July 19 to produce the
recordings. I had already produced all responsive photographs and videos. Late in the day on July 19,
14
Tesla's counsel submitted a letter to the Court advising it would withdraw its petition rather than
15
produce the recordings. (Sec EXHIBIT 12.) Based on Tesla's action, the Court entered an order of
16
dismissal in the Harassment Action on July 26, 2019. A copy of the Order of Dismissal is attached at
17
EXHIBIT 15.
18
19
I declare under penalty of pe1jury under the laws of the State of California that the foregoing is
20
true and correct and that this document was executed in Oakland, California.
21
)
22 DATED: January 11, 2021
23
24
Randeep Hothi
25
26
27
28
11
-------------------------------
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CASE No. RG20069852
DECLARATION OF RANDEE!' HOTJII
AA646
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DECLARATION
OF
RANDEEP HOTHI
EXHIBIT
1
Document received by the CA 1st District Court of Appeal.
From: The Law Office of D GI Fax: 14154046616
CASE No. RG20069852
I
DECLARATION OF RANDEEP HOTH!- EXHIIllT
AA647
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Behind Tc-:la's Production Delays: Palts of Model 3 Were Being Made by Hand"' WSJ
This copy is for your persona!, non-commercial use only. To order presentation-ready copies for distribution to your colleagues, dients or customers visit
https://www. dj reprints.com
https://www.wsj.com/articles/behind- tes!as -production-delays- parts- of-mode!- 3--were- be!ng- made-by- hand-1507321057
TECH
Behi11d Tesla's Production Delays: Parts of
Model 3 Were Being Made by Hand
A sales rep helps a customer pre-order Tesla's Model 3.
PHOTO: AFP/GETTY IMAGES
By Tim Higgins
Oct 6, 2017 4:17 pm ET
FREMONT, Calif.- Tesla Inc.
TSLA 7.94% A
blamed "production bottlenecks" for having
made only a fraction of the promised 1,500 Model 3s, the $35,000 sedan designed to
propel the luxury electric-car maker into the mainstream.
Unknown to analysts, investors and the hundreds of thousands of customers who signed
up to buy it, as recently as early September major portions of the Model 3 were still being
banged out by hand, away from the automated production line, according to people
familiar with the matter.
While the car's production began in early July, the advanced assembly line Tesla has
boasted of building still wasn't fully ready as of a few weeks ago, the people said. Tesla's
:,8)
_.,
Document received by the CA 1st District Court of Appeal.
Company thb week blarnecl 'pmduction bottlenecks' for corning well sho1t of prnrnised 1,500 vehicles
l.::J
-· Ix\
~
AA648
https://www .wsj .com/ artides/hehiml . ,tcslas . -production-delays--parts-.tJf.. modcl .. 3. . werc ..heing . . made ..hy . .Jrnnd . . 1507321 057
115
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Behind Tc-:la's Production Delays: Palts of Model 3 Were Being Made by Hand"' WSJ
company feverishly worked to finish the machinery designed to produce Model 3's at a
rate of thousands a week, the people said.
Automotive experts say it is unusual to be building large parts of a car by hand during
production. "That's not how mass production vehicles are made," said Dennis Virag, a
manufacturing consultant who has worked in the automotive industry for 40 years.
"That's horse-and-carriage type manufacturing. That's not today's automotive world."
Tesla introduced the Model 3 at an event outside the company's factory in July, when
Chief Executive Elon Musk drove a shiny red Model 3 onstage as hundreds of his
employees cheered the first sedans rolling off the production line.
Within minutes of stepping out of the new vehicle, Tesla's leader warned his engineers
and designers the coming months would be challenging. "Frankly, we're going to be in
production hell. Welcome, welcome!" he said to laughter.
Behind the scenes, Tesla had fallen weeks behind in finishing the manufacturing systems
to build the vehicle, the people said.
The extent of the problem came to light on Monday when Tesla said it made onlY. 260
Model 3s during the third quarter-averaging three cars a day. The company cited
production bottlenecks but didn't explain much further.
"Although the vast majority of manufacturing subsystems at...our California car
plant...are able to operate at high rate, a handful have taken longer to activate than
expected," the company said at the time.
In Mr. Musk's pursuit to rid the world of combustion engines, Tesla is trying to apply
Silicon Valley's ethos of rapid change to the type of complex manufacturing process that
traditional auto makers have spent decades perfecting. Unusual in the U.S. tech industry,
. fx\
11lll
-\:::;
-
AA649
https://w ww .wsj .com/ artides/hehiml . ,tcslas . -production- dela ys--parts . ,of.. modcl .. 3. . were-being•· made ..hy . .Jrnnd . . 1507321 057
Document received by the CA 1st District Court of Appeal.
In a statement, a Tesla spokeswoman declined to answer questions for this article and
said, "For over a decade, the WSJ has relentlessly attacked Tesla with misleading articles
that, with few exceptions, push or exceed the boundaries of journalistic integrity. While it
is possible that this article could be an exception, that is extremely unlikely." The Journal
disagrees with the company's categorization of its journalism.
215
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Behind Tc-:la's Production Delays: Palts of Model 3 Were Being Made by Hand"' WSJ
Tesla's challenge requires integrating an army of factory workers and some 10,000 parts
from suppliers around the world.
Tesla's roll out of the Model Xsport-utility vehicle in 2015 also was plagued by quality and
design issues that left suppliers scrambling and hourly workers having to rush to meet
lofty goals. But the plans for the Model 3 are far larger, meaning the lack of a fully working
assembling line so late in production could deal a bigger blow to the company.
Calling his cars a "computer on wheels,'' Mr. Musk caught conservative Detroit off guard
with Tesla's ability to quickly change features, such as a semiautonomous drive system,
with software updates over the air. The company's stock has soared about 69% in the past
12 months, at times pushing its market value past General Motors Co. 's.
But building 500,000 vehicles a year-as Mr. Musk had projected Tesla would start doing
next year-is a sizable leap for a company that only made 84,000 Model S sedans and
Model XSUVs last year. By comparison, General Motors Co., the largest U.S. auto maker by
sales, delivered about 10 million vehicles globally last year, or more than 27,000 a day.
To approach what a typical factory in North America churns out, 14-year-old Tesla must
build the muscles to roll out a car every minute of the workday and do it so well that the
vehicles don't cause headaches for customers down the road.
Most auto makers celebrate the start of production of a new vehicle to sell-so-called Job
1-after six months or so of running the assembly line to build a few hundred vehicles to
work out the bugs, said Doug Betts, senior vice president of global automotive operations
at consultancy J.D. Power and a former manufacturing executive for Toyota Motor Corp.,
Fiat Chrysler Automobiles NV and Armle Inc.
"You're not really improving the final process if you're not running on it," Mr. Betts said.
"Problems can only be solved once they are found."
AA650
https://www .wsj .com/ m1ick:s/hehiml . ,tcslas . -production-delays--parts-.tJf.. modcl .. 3. . werc ..heing . . made ..hy . .Jrnml . . 1507321 057
Document received by the CA 1st District Court of Appeal.
Mr. Musk has said Tesla learned from the Model Xmistakes. And he has proven doubters
wrong before, creating a luxury brand that competes against BMW and Mercedes-Benz
for buyers and has demonstrated that fully electric cars can find an enthusiastic following
beyond a niche of environmentalists.
:vs
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Behind Tc-:la's Production Delays: Palts of Model 3 Were Being Made by Hand"' WSJ
willing to test the cars and return them to the company. By the time a car goes on sale, the
body shop typically fully automated.
Inside the Fremont factory, workers said equipment for the so-called body-in-white line
for the Model 3, where the car body's sheet metal is welded together, wasn't installed until
by around September. They guessed at least another month of work remained to calibrate
the tools.
"In place of the robots ...you've got two associates lining up with a big, old spot welder
hanging from the ceiling by a chain, and you've got one associate kind oflike balancing it
to
welder position, and you've
another welder with his arm
and
guiding it,'' this worker recalled seeing. "Sparks go flying."
In August, Mr. Musk told analysts that the Model 3s coming out of the factory were "not
engineering validation units."
"They're fully certified, fully DOT-approved, EPA-approved production cars," Mr. Musk
said, referring to the Department of Transportation and the Environmental Protection
Agency. "These are not prototypes in any way. They're not validation anything. They are
full production cars."
But he also said early versions coming out of Fremont would have issues, which
first cars were going to employees and investors who paid for them.
why the
Tesla has said it expects to begin delivering the first cars to nonemployees this quarter. It
will have to seriously boost production to meet Mr. Musk's 5,OOO-a-week projection.
Write to Tim Higgins at Tim.Higgins@WSJ.com
Appeared in the October 7, 2017, print edition as '.'
AA651
Document received by the CA 1st District Court of Appeal.
One worker who spent time in the Model 3 shop-dubbed by some as Area 51 because of
the limited access and secretive nature-described watching young workers in September
struggling to move large pieces of steel to weld together instead of using robots as is
traditionally the case.
-
https://w ww .w sj .com/ artides/hehiml . ,tcslas . -production-delays--parts••Of.. modcl .. 3. . werc ..hcing . . made ..hy . .Jrnnd . . 1507321 057
415
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Behind Tc-:la's Production Delays: Palts of Model 3 Were Being Made by Hand"' WSJ
Document received by the CA 1st District Court of Appeal.
1/7/2021
To:
AA652
-
https://w ww .w sj .com/ m1ick:s/hehiml . ,tcslas . -pro
PDF Page 55
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DECLARATION
OF
RANDEEP HOTHI
EXHIBIT 2
Document received by the CA 1st District Court of Appeal.
From: The Law Office of D GI Fax: 14154046616
CASE No. RG20069852
DECLARATION OF RANDEEP HOTH!- EXHIIllT 2
AA653
From: The Law Office of D GI Fax: 14154046616
To:
Other Court Cases
a. Has the employee or any of the persons named in
Fax: (510) 267-1547
•
Page: 50 of 157
01/11/20211:13 PM
been involved in another court case with the respondent?
t8J No D Yes
(l)
(2)
(3)
(4)
(5)
(6)
(7)
(8)
(9)
(lO)
(11)
If yes, c,heck each kind of case and indicate where and when each was filed:
Year Filed Case Number fifk11ow1i}_
Filed in (Co1111/v/Sta/t/)
Kind of Case
DWorkplace Viole~ce
D Civil Harassment
0 Domestic Violenc.e
D Divorce, Nullity, Legal Separation
0 Paternity, Parentage, Child Support
0 Eviction
0 Guardianship
0 Small Claims
D Postsecondary Sc)100! Violence
D Criminal
D Other (specify):
Document received by the CA 1st District Court of Appeal.
b. Are any restraining orders or criminal protective orders now in effect relating to the employee or any of the
D No D Yeti (Ifyes, attach a copy ifyou have one.)
and the res~ondent?
persons in
This is not a Court 'order.
ReviscJ Jenuory 1, 2016
Petition for Workplace Violence Restraining Orders
(Workplace Violence Prevention)
AA656
WV-100, Page 3 of 7
•
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Page: 51 of 157
Case Number: .:.
0 Description of Respond,ent's Conduct
a. Respondent has (check one or more):
(I) [8J Assaulted, battered, or stalked the employee
(2) [8J Made a credible threat of violence against the employee by making knowing or willful stateme,nts or
engaging iii a CO\lrse of conduct that would place a reasonable person in fear for his or her safety or the
·
safety of his or her immediate family.
b, One or more of these acts (check either or bolh}:
·(!) [8J Took place at the employee's workplace
(2) [8J Can reasonably be construed to be carried out in the future at the employee's workplace
Address of workplace:
s~~e Attachment 8b(2) for a list of work~lace addresses,
Sec ara ra h 4.
d, Was the employee harme~ or injured?
0 Response is stated in Attachment 8d.
l8J Yes D No (ljyes, describe harm or injuries):
When Respondent hit Mr, James with his car, Mr. James suffered iniury to his knee.
e. Did the respondent ust or threaten to use a gun or any other weapon?
· D Response is stated in Attachment 8e.
D
Yes [8J No (Ifyes, describe):
This is not a Couri Ord~r.
Revisod January 1, 2018
Petition for Workplace Violence Restraining Orders
(Workplace Violence Prevention)
AA657
WV-100, Page 4 of 7
•
Document received by the CA 1st District Court of Appeal.
c. Describe what happened, (Provide details; include the dates of all incidents beginning with the mo.it recen/; tell
who did what to whom; identify any witnesses):
D Response is stated in Attachment 8c.
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1
....c_a_se_N_u_m_b_er._._ _ _ _ _ _
0
f.
01/11/20211:13 PM
__,l·
For any of the incidents d~scribed above, did the police come? 1.8) Yes O No
I don't know
lfyes, did the employee or the respondent receive an Emergency Protective Order?
OYes 0No0 ldo_n'tknow
If yes, the order protects (~heck all rhat apply):
0 the employee
O the respondent
O one or more of the persons in@.
(Attach a copy ofthe order if you have one.)
Check the orders you l,lfant Ir!
r.;\ t8l Personal Conduct Orders
l ask the court to order the respondent not to do any of the following things to the employee or lo any person to
be protected listed in@ : ·
a.
0
Harass, intimidate, molest, attack, strike, stalk, threaten, assault (sexually or otherwise), hit, abuse, destroy
personal property of, or disturb tlie peace of the person,
·
b. (gJ Commit acts of unlawful violence on or make threats of violence to the person.
c. (gJ Follow or stalk the person during work hours or to or from the place of work.
d. (gJ Contact the person, eit,her directly or indirectly, by any means, including, but not limited to, in person, by
telephone, in writing, by public or private mail, by interoffice mail, by e-mail, by text mes~agc, by fax, or by
other electronic means.
e. (gJ Enter the person's workplace.
F. 0 Other (specify):
0 As stated in Attachment 9f.
The respondent will be orde~ed 110/ to take any action to get the addresses or locations of any p1·otected person
unless the courr jinds good cause not to make the order.
@ Stay-Away Order
a.. J ask the court to order the respondent lo stay at least500
yards away from (check all that app(y):
(l) !8J The employee.
(8) (gJ The employee's vehicle.
(2) 1:81 The other persons listed in@.
(9)
121 Other (specify).AII places !hat Petitioner conducts its business, as
described in Attachment 8b(2).
(3) 1:81 The employee's workplace.
(4) 0 TI1e employee's home.
(5) D The employee's school.
(6) D The school of the employee's
children.
(7) D The place of chik.1 care of the employee's
children,
This is not a Cou~t Order.
Petition for Workplace Violence Restraining Orders
(Workplace Violence Prevention)
AA658
WV-100, Page 5 of I
•
Document received by the CA 1st District Court of Appeal.
V
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ICase Number:
@ b. Ifthe court orders the respondent to stay away from all the places listed above, will he or she still be able to get
to his or her home, school, or job?
t8l Yes
0 Response is stated on Attachment IOb.
ONo
(If no, explain):
@ Guns or Other Firearms. and Ammunition
Does the respondent own or possess any guns or other firearms? 0 Yes
D No
t8] l don't know
If the judge grants aprorective order, the respondent will be prohibitedfrom owning, possessing, purchasing,
receiving, or attempting to purchase or receive a gun, other firearm, and ammunition while the protective order i,r
in e!fecl. The respondent will dlso be ordered to turn in to law enforcement, or sell to or store with a licensed gun
dealer, any guns or firearm.! wUhin his or her immediate possession or control.
@ [8J Temporary Restraining Order
.
Has the Respondent been told. that you were going to go to court to seek a TRO against him/her?
D Yes IE!No (![you answered no, explain why below):
D Reasons are stated in Attachment 12.
Respondent's course of conduct and behavior in stalking, harassing, and assaulting Petitioner's employees are such
Jhat great or irreparable hann: is likely to occur if immediate orders without notice are not issued.
@)
D Request for Less Than Five Days' Notice of Hearing
You must have your papers personally served 011 the respondellt at least five days before the hearing, unless the·
court orders a shorter time f~r service. (Form WV-200-INFO explains what is proof ofpersonal service. Form
WV-200, Proof orPersonal Service, may be used to show the court that the papers have been served.)
If you want there to be fewer than five days between service and the hearing, explain why:
D
Reasons are stated in Al1,_tchment l l
@ [8J No Fee for Filing ·
I ask that there be no filing fee because the respondent has threatened violence against the employee, or stalked
the employee, or acted or spoken in a manner that haftaccd the cmllir in reasonable fear of violence,
iittdtiit•i · ri•hHi•MJ
Ro~lsM Ja»uaf)' l, 2018
Petition for Workplace Violence Restraining Orders
(Workplace Violence Prevention)
AA659
WV-100, Page6of7
•
Document received by the CA 1st District Court of Appeal.
I request ti1at a Temporary Restraining Order (TRO) be issued against the Respondent to last until the hearing. I am
presenting fonn WV -110, Temporary Restraining Order, for the court's signature together with this Petition,
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'l~C-as_e_N_u_;_bo_~_?_•_ _ _
@) D No Fee to Serve Orders
.
01/11/20211:13 PM
~
·
I ask the court to order the sheriff or marshal to serve the respondent with the others for free because this request
for orders is based on a credible threat of violence or stalking.
@D Court Costs
I ask the court to order the respondent to pay my court costs.
@ [gl Additional Orders Requested
I usk the court to mnke the following additional orders (.ipeci/y):
On April 22, 2019, Tesla will host an event at its headquarters at 3S00 Deer Creek Road, Palo Alto, during which
Tesla employees will be demo'nstratingvehiclc functionality in manufacturer-plated vehicles on nearby roads.
Respondent has expressed int6rcst in this event on Twitter, and his Twitter followers have encouraged him to try to
follow and interfere with these drives. Respondent is a vocal Tesla detractor, claims to be a Tesla short-seller, and
tweets extensively abouthis desire to see Tesla (and its Autopilot technology) fail. To ensure the safety of Tesla
employees and the public, terriporary protection is needed, on April 22, 2019 only, for any Tesla employee driving a
Tesla vehicle with manufacturer plates within 5 miles ofTesla's headquarters at 3500 Deer Creek Road, Palo Alto,
California. Respondent is well aware of what Tesla manufacturing license plates look like, as he has previously
posted a picture of one, and noted that it was a "company vehicle." See Declaration of Christine Leslie, Attachment
A.
issue an additional 50-yard stay away order from any Tcsl
@ Tesla therefore respectfully requests that the Courtof Tesla's
headquarters at 3500 Deer Creek Road, Palo Alto,
vehicle with manufacturer plates within 5 miles
California on April 22, 2019 only.
Number of pages attached to this form, if any:
_rl
bate: April 19,2019
Zachary J. Alinder
Lcrwyer's name (if any)
l declare under penalty of pe,jury under the laws of the State of California that the information above and on
all attachments is true and co,rect.
Date: Af}riI_l 9, 20 I9
· Christine Leslie ,
Name ofpetitioner
Staff Global Security Investigator, Security
.. Title
libhHiMdi.jjjlt•Aitl
Petition for Workplace Violence Restraining Orders
(Workplace Violence Prevention)
AA660
WV-100, Page 7 of7
Document received by the CA 1st District Court of Appeal.
0 Additional orders requested are stated in Attachment 17.
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ATTACHMENT 8b(2)
to Petition for Workpla~e Violence Restraining Order
Addresses of workplace:
(1) 45500 Fremont Boulevard
Fremont, CA 94538
Document received by the CA 1st District Court of Appeal.
(2) 3500 Deer Creek Road
Palo Alto, CA 94304
AA661
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'
PLAINTIFF/PETITIONER:
Tesla, Inc.
DEFENDANT/RESPONDENT: Randeep
Page: 56 of 157
01/11/20211:13 PM
I
MC-031
CASE NUM8ER:
Hothl
DECLARATION
(This form must be attached to another form or court paper before It can be filed In court.)
I, Christine Leslie, am the Staff Glbbal Security Investigator, Security, for Tesla, Inc.
·
All information stated in this declaration Is based upon my own personal knowledge, my review and oversight of work
done by others who report to me, and information obtained from other Tesla team members in the course of my
investigation as outlined below.
I declare under penalty of perjury under the laws or the State or California thal the foregoing Is true and correct
Date: April 19, 2019
rkc~
Christine Leslie
(TYPE OR PR1NT NAME)
(SIGNATURE OF DECLARANT)
0
0
Foi1'/\ Approved ror Qp11onu1 Use
Judicl3! Cmmcil ol camom1a
MC,031 [Rev.Jut11, 200S)
Attorney for
Respondent
ATTACHED DECLARATION
AA662
O Plaintiff
i:;;;J Petitioner
O Defendant
Arrwrcar1 Li!QlllNot, ll'lt.
www.USco11nForrn!f.com
Page 1of 1
D Other (Specify):
Document received by the CA 1st District Court of Appeal.
I have personally conducted an investigation into the threats made by the driver of a white Acura TL against Tesla
employees Matt Cross, Robert Temmerman, and James McDonald while they were attempting to film the Navigate on
Autopilot feature while driving a Tesla Model 3 on April 16, 2019, The summary attached hereto as Attachment A
explains how Testa was able to identify the individual stalking and harassing the above Tesla employees as Respondent
Randeep Hothi.
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Attachment A to Christine Leslie Declaration
• On Twitter, the ttser with the@skabooshka handle identifies as part of a community of
Tesla short-sellers and frequently tweets with the hashtag "$TSLAQ," which is used
on line to indicate,the poster's hope or purported belief that Tesla will fail as a company.
As reported in the L.A. Times, the goal of the $TSLAQ movement is to see Tesla fail
https ://www.latimes.com/b usiness/au tos/la-fi-h y-tesla-short-se Ilers-m usk-20 I 90408sto1y. htm I.
• In spring 2018, the@skabooshka handle began regularly posting photos and video of the
Tesla Fremont factory employee parking lots and logistics lots. These locations are not
open to the public.
• Tesla discovered that the Twitter account was used by one of two Fremont-based
brothers, Gagan and Randeep Singh Hothi, based on internet research and public record
searches and Tesla security infrastructure, including security cameras on the premises.
o Gagan and Randeep's last address of record is Fremont with their father,
Kalvinder; Singh Hothi. Public records indicate the three men live within less than
3 miles of the Tesla Fremont factory.
• In August 2018 an Ario portable camera was found by Tesla Security Personnel mounted
on a utility pole at the private property of the Tesla Fremont factory, pointed at Tesla
private prope1ty. An Ario customer service representative provided the registered name,
Skabooshka, and email skabooshka@protonmail.com, for the camera in question.
• Jn January 2019, a Cam Pak Hunting Trail portable camera was discovered inside a utility
box at a private parking lot at the Tesla Fremont factory, pointing in the same general
direction as the aforementioned Ario camera. The camera was examined, photographed,
and left in place, and Tesla security cameras were adjusted to observe the location.
o At l 0:37 pm on January 3, 2019, a white Acura entered the Tesla factory parking
lot, CA license plate_, parking with headlights illuminating the utility box
containing the camera. A tall, bearded male with long hair exited the vehicle,
removed the known device as well as another, moved them bath several times, ,
finally collecting them both and departing.
o California DMV records indicate the registered owner of the Acura is Kalvinder
Singh of Fremont, father and co-habitant of Gagan and Randcep Hothi.
o As described in a subsequent police report, Kalvinder identified his son Randecp
as the primary user of the identified vehicle.
2. · Ran deep Hothi 1hits a Tesla employee with his car after he is caught trespassing.
• On Thursday, February 21, 2019 at approximately 2: 11 pm, the aforementioned white
Acura was again seen at Tesla's Fremont factory, and two Tesla security officers,
including Tyler James, were dispatched todelivera verbal notice of trespass .
88888-8\3974091
. 1.
AA663
Document received by the CA 1st District Court of Appeal.
1.' Randcep Hothi's history of trespassing on Tesla's property and Tweeting about it.
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Document received by the CA 1st District Court of Appeal.
• At 2:22 pm, Mr. James, in uniform, approached the vehicle in the employee parking lot
and tapped on the:driver side window.
• The driver, later identified as Randcep Hothi by Fremont police, made eye contact with
the Tesla security officer, refused to roll down the window, and drove his car quickly and
recklessly out oft_he parking spot, striking Mr. James as he sped out of the parking lot.
• The Tesla employees followed him out of the lot and delivered the verbal notice of
trespass while the Acura was stopped at a stop sign in traffic on the private access road
. adjacent to the Tesla Fremont factory. Randeep did not roll down his window and did
not cooperate with security personnel, and drove off as soon as traffic cleared.
$8888-8\3974091
-2-
AA664
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• Tesla reported the matter to the police. On 2/27/2019, the Fremont Police Department
confi1111ed that R~ndeep Hothi was the driver of the vehicle involved in the 2/21 incident
Following their investigation, the Fremont Police Depa1tment has prepared a formal No
Trespassing order to Randeep Hothi and has attempted to deliver it to him. The police
have informed Ti:sla that effo1ts to deliver the No Trespassing order have been
unsuccessful because Randeep has either ignored or refused the request of Fremont police
officers to meet.
3. · Randeep Hothi :endangers a crew of Tesla employees driving on public roads.
,
On 4/16/2019, a crew of Tesla employees was driving on Highway 880 in a Model 3
vehicle with manufacturers' license plates and externally mounted camera equipment.
The crew-comr1rised of Matt Cross, Robert Temmerman, and James McDonald-was
taking video to demonstrate the capabilities of Tesla's Autopilot and Navigate on
Autopilot featmes, which can semi-autonomously drive the vehicle on the highway (with
human supervision) by steering, braking and accelerating, and changing lanes, among
other things.
• During the drive, the crew observed a white Acurn TL driving unsafely and erratically,
following them ~nd approaching the vehicle from all sides, and taking photos. While on
the freeway operating at speed, the vehicle would move very close to the Tesla.vehicle
and at times swerve toward the Tesla's lane, at one point triggering the vehicle's sidecollision (crash) avoidance system. At another point, the Tesla vehicle had slowed down
88888-8\3974091
-3-
AA665
01/11/20211:13 PM
Document received by the CA 1st District Court of Appeal.
From: The Law Office of D GI Fax: 14154046616
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• The @skabooshka Twitter account corrobo1'ates the team's account of events, and
reinforces the connection between the@skabooshka account, the Acura TL, and Randeep
Hothi.
.
• In particula1-, on Apl'il I6 and April 18, the@Skabooshka account began tweeting photos
of a Tesla photography crew driving on 880 in a Tesla vehicle with manufacturer plates.
The tweets included pictures and detailed the entire route of the car and crew.
88888-8\3974091
AA666
Document received by the CA 1st District Court of Appeal.
in preparation of the toll booth ahead. The white Acura TL was in the left lane behind the
Tesla. vehicle, but was approaching very fast. When the white Acura TL realized that the
Tesla vehicle was slowing down, the driver attempted to merge right behind the Tesla
vehicle but had to then rapidly brake, otherwise it would have driven past the Tesla
vehicle_ at his spei:d. The Tesla crew felt this was a very dangerous and threatening
maneuver.
• The video crew had no previous knowledge ofthe@skabooshka/Randeep 1-lothi case, but
were so concerned with the behavior that they decided to call the police.
• The crew was able to take a photo of the car, which was the same white Acura TL
described above that is known to be driven by Randeep Hothi. Aller being shown a
photo ofRandecp Hothi, two of the crew members confirmed they believed that Randecp
1-lothi was the driver of the white Acura TL on the day they were followed and harassed.
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• As shown by the below screenshots, the @skabooshka account began tweeting about the
drive at I :29 PM PDT, and the team raised their concerns at about 11 :30 AM PDT. He
then followed up with additional tweets on April 18, 2019:
a, skabooshka
•
@!;1i;,1bQo~Jika
is
Tesla currently conducting its
autoRilot / FSD demo recording
northpound on 1-880, usi[)g a red d_ual
motor Model 3, w/ two backseat •
came:ramen and trunk-mounted gopro.
Vehicle entered 1-880 near Fremont at
1PM • ,:i,;,''"
c,) "
\l
n "'
v "'
r:1
!\':cot )'Wr roply
··,,,tiH:'!
skaboo&hka tjiskaboo:;h~;i 10h
•
v
The vehicle traveled 0p:)1ox!mately 35 miles f1om t:00PM 10 1:40PM, entered I·
860N 1n flrermmVUnion City, condwc1ed trivial lnne change, (mer9ii;9 from
!cttmosHono inlo right jano and Dack), and conclwdod its "automous~ drivo at
the Treasure Island oxit on tho Bay 8ridgo.
. ,Watn
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skabooshka @Skabooshkn · 1Oh
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01/11/20211:13 PM
v
The demo conv~nlernly bypassed the to!! booth, by using lanes compatible with
the "FasTra.k" transponder.
-
Note that the vehicle dtd not \and most assuredly does not have the capability
to) follow trafficilaws. Bay 8ridga entrance speed limit is 25 MPH, The vehicle
drove at 45 MPH
0
5
n,
Q "
l'J
skobooshko
°WS~U)l(.lOst\ko
Photogr;aphs: '.; \ : ", recording the
"autonomous driving" demo for its socalled "Autonomy Investor Day" (Apr
22).
Mounted, two cameras: one rear,facing
on the trunk, one inside directed
towards the steering and center
console'.
Note thil license plate: MFG632779S. a
compariy vehicle
I
I
'il:tl:IAM· 1nAr11?i)tll
o The behavior of the Acura driver, as recounted by the crew, is also consistent with ·
@skabooshka's apparent obsession, as documented on Twitter, with testing-and
disputing - the capabilities of Autopilot.
88888-8\3974091
6
AA668
Document received by the CA 1st District Court of Appeal.
•
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4. Randeep Hothi Should Be Restrained from Interfering With Tesla's Upcoming
Autonomy Inves'tor Day on April 22 nd in Palo Alto
~ ;kaboushku (!-~~-ii,v11ohko A11r Hi
!
'W
'
r
' - -.. -"'"·v
i,i!a ii t\lff~n!I)' C0111'.l!J
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sk,1br,10,hka (i::.kaboMhk,; · ?1h ·
01/11/20211:13 PM
I
v
! As t'lith all thi11gt Tesla. partin1!arly with regard to its appare111 technol09ics1!
prowes~. lhe ·Autonomy l!wt!stor Daf >vii! be mura1€!dwith false pcornim,
rnisleading·svgg,W10ns. ~nd lures to credulity,
0
I)
U IO
El
t! '"
V
f:1
V
It wi.11 be funny if it crashed.
11:20 AM · 1$ Apr 21)19
n
0
fl
• . $kAbQoshkA @s~alJooshka • Apr lG
v
•
T1;;.sl,;1 fa (Urrnntly
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MC-031
CASE NUMBER:
PLAINTIFF/PETITIONER: Tesla, Inc.
DEFENDANT/RESPONDENT: Randeep Hothi
DECLARATION
(This form must be al/ached to another form or courl poper be/on, it can be filed In court)
I, Tyler James, am a Senior Protection Specialist for Tesla, Inc,
All information stated in this de9laration is based upon my own personal knowledge, unless stated on information and
belief, and if stated on information and belief, I believe those things to be true.
I declare under penalty of perjury 1mder lhe laws of the State of California that the foregoing is true and cermet.
Date April 19, 2019
Tyler James
(D'PE OR PR!IH NAME)
0 Attorney for O · ainliff O Petitioner O Defendanl
D Respondenl i:,,J Other ($pacify).· Wilness
F?'ffl A~1av1Jd /Qr ('.)pll(lMI Vso
Jw:!1e1111 cw~til Qf C1MMHll
MC·031 (11:~v. J,;ly 1, 2005)
ATTACHED DECLARATION
AA671
AiJ'Wle•n l~o•INct, tne,
www.USCourtFonm.com
Page1 of1
Document received by the CA 1st District Court of Appeal.
On Thursday, February 21st 2Q19 at approximately 2:11 pm, Iwas asked to respond to a BOLO hit near the South
pal1
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MC-031
CASE NUMBER:
PLAINTIFF/PETITIONER: Tesla, Inc.
DEFENDANT/RESPONDENT:
Page: 66 of 157
Randeep Hothi
DECLARATION
(This fonn must be attached to another form or court paper before it can be filed in court.) ·
I, Matt Cross, am a Senior Content Producer for Tesla, Inc.
All information stated in this declaration is based upon my own personal knowledge, unless stated on information and
belief, and if stated on information and belief, I believe those things to be true.
1
On April 16, 2019, my colleagues Robert Temmerman, James McDonald and I were in a Tesla Model 3 to film its
Navigate on Autopilot feature. •
We were driving northbound on I-~B0 around 11 :30 a.m. and had been driving for approximately 5 minutes near the Auto
Mall Parkway when Rob noticed a!white Acura TL on our right side approaching us from behind
We saw that the male driver was observing us and our car, and he started taking photos and videos on his phone. He
stayed near us for about 10 minutes, maneuvering around our car.
The driver stayed within visual contact with our car for the rest of our drive to Treasure Island.
As we approached the toll plaza to the Bay Bridge, the Model 3 slowed down to 35mph. The Acura TL had been 100 ft
behlnti us on the left, and the driver swerved into our lane, braked abruptly, and came up very close behind us as we
slowed down.
We proceeded to Treasure Island, but the driver continued to follow us off the freeway, at which point I called the San
Francisco Police Department. We then drove around making random turns to see if he was still going to follow us. He
did. As we circled around Treasurii Island talking to the police, he turned off on a different road. I was told that there
were no officers on Treasure Island, and therefore no officers would be able to arrive within the next 30 minutes. Since
the dr_iver was no longer following us, we decided to start drivi_ng back and told the police officer not to send anybody.
The driver had been following us for at least 35 minutes. His erratic and dangerous conduct cause me to fear for my
which is why I called the police.
safety and for the personal safety of Rob and James,
personal
.
..
'
I. declare under penally of perjury under the laws of the State of California that the foregoing is true and correct
Date: April 19, 2019
Malt Cross
(S1GNAnJRE OF DECU.RANT)
(TYPE OR PRINT NAM~)
D Attorney for D Plaintiff D Petitioner D Defendant
D Respondent 18] Other (Specify): Witness
Ferm /\pprovo(l lor Opiiori111 uae
J1idici1'll Cm11'1Cil of f:.1J'ifornio
ATTACHED DECLARATION
Amurkan L~gijlN:11t, Inc,
www.U$CourtForma.com
MC,031 [fiov, July 1. 2005]
AA672
Page 1of1
Document received by the CA 1st District Court of Appeal.
We were in the far left lane, and he was in the lane next to us on lhe right. He then started swerving out of his lane
towards us. This happened twice, and he swerved close enough to trigger the Model J's side-collision avoidance feature.
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MC-031
PLAINTIFF/PETITIONER
DEFENDANT/RESPONDENT:
CASE NUMBER:
Tesla, 111c.
Randeep Hoth
DECLARATION
(This /om, must be attached to another fom, or court paper before it can be fifed in court)
I, Robert Temmerman, am an Associate Content Producer, Design & Styling, for Tesla, Inc.
All information stated in this declaration is based upon my own personal knowledge, unless stated on information and
belief, and if stated on information and belief, I believe those things to be true.
On April 16, 2019, I was driving a Tesla Model 3 with my colleagues Matt Cross and James McDonald in the backseat to
film the Navigate on Autopilot feat,ure.
Towards the end of the drive, we lost sight of the Acura TL for a few minutes However, as we drove onto the on-ramp
leading to the Bay Bridge and wete rounding a slighly curved corner, I saw the driver reappear at a high speed. He
switched lanes from the right lane adjacent to ours into our lane. Because the car's Autopilot had slowed us down to 40
mph ir about 4 seconds, the only way I was able to avoid a collision was to disengage Autopilot and accelarate rapidly.
This is when Matt decided to call the police, as we were all fearful for our personal safety and the driver of the Acura TL
appeared to be either stalkin~ or harassing us.
I declare under penalty of perjury under lhe laws of the State of California that the foregoing is true and correct.
Date: April 19, 2019
Robert Temmerman
(TYPE OR PRINT NAME)
D Atlorney for D Plaintiff D Petitioner D Defendant
D Respondent 181 Other (Specify): Witness
form Approved !or op11ona! use
Judicial Coimr.i\ of CJilfornle
MC-031 {Ruv J1,1ly t, 200$)
ATTACHED DECLARATION
AA673
Arnttrlc:irn L~ga!Ntd, Inc.
www.USCotirtForms,com
Page1011
Document received by the CA 1st District Court of Appeal.
When we came into contact with the white Acura TL referenced in Matt's declaration, I was able to tell that the driver
imm~diately recognized that we were filming. The driver pulled out his phone to record us, and when doing so, began to
merge into our lane directly para11b1 to our car. Because the Acura TL continued to come within 12 to 18 inches of our
vehicle, the car's Autopilot feature: repeatedly caused the car to move over in the lane to avoid a side collision: The
driver eventually drove around all four sides of the car, presumably to test the car's various features.
PDF Page 76
To:
From: The Law Office of D GI Fax: 14154046616
Fax: (510) 267-1547
•
PlAINTlfFIPETITIONER: Tesla, lrjc
DEFENDANT/RESPONDENT: RandeeI'l
Page: 68 of 157
01/11/20211:13 PM
MC,031
CASE NUMBER:
Hothi
DECLARATION
(This form must be attached to another form or court paper before it can be filed in court.)
I, James McDonald, am a video editor for Tesla, Inc.
•
All information stated in this declaration is based upon my own personal knowledge, unless stated on information and
belief, and if stated on information'and belief, I believe those things to be true.
I declare under penally of perjury undilr the laws of the Slate of California that the foregoing is true and correct.
Date: April
19, 2019
James McDonald
(TYPE OR PRINT NAME)
D Attorney for D Plaintiff D Petitioner D Defendant
D Respondent (2:1 Other (Specify): Witness
Form Approved tor Op11011,1 uie
Judicial CQurcil or Cali!omia
ATTACHED DECLARATION
Amerlcim LIIQJIIN,t, !M,
www,USC011rtForm11.com
MC-031 !Fl'JV )l,liy U0051
AA674
Page1 of1
Document received by the CA 1st District Court of Appeal.
I have reviewed the Declarations c1f Matt Cross and Robert Temmerman and agree with their accounts of the events on ·
April 16, 2019. The erratic and d~ngerous actions of the driver of the white Acura TL caused me to fear for my personal
safety and for the safety of my colleagues.
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DECLARATION
OF
RANDEEP HOTHI
EXHIBIT 3
Document received by the CA 1st District Court of Appeal.
From: The Law Office of D GI Fax: 14154046616
CASE No. RG20069852
DECLARATION OF RANDEEP HOTH!- EXHIIllT 3
AA675
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Fax: (510) 267-1547
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01/11/20211:13 PM
$upjjlerrmnt N.o
190227026
Incident Report
FREMONT POLICE DEPARTMENT
ORIG
·!{epOrtFANO, JOSEPH .R!CSARD
·""l?!ill)rll
, 05/07/2019 15: 28
1 of .:3
AA676
Document received by the CA 1st District Court of Appeal.
Marnb-enl'f
PDF Page 79
To:
From: The Law Office of D GI Fax: 14154046616
Fax: (510) 267-1547
!iome
01/11/20211:13 PM
190227026
Incident Report
FREMONT POLICE DEPARTMENT
Typu
Page: 71 of 157
Slill'Pi•r-..tl'l_Hti
Oil.IG
I Acld!'O&!i
Onie
lty
02/~7/2019
OLS
f TYf1e
Document received by the CA 1st District Court of Appeal.
California
OperatorLioense/IO
Cify
I !DNo
j ~Morie -fyp0: 1 POOnt'; No
: :
Notification:
On 02/27/19, at about 1300 hours, I was cont.acled by Officer Kerner and he requested I foUoW up in regards to a
call for service he had. Officer Kerner was going to be off work for an extended period of time.
Officer Kerner provided me the following details:
On 02121119, a! about 1538 hours, Officer Kerner was dispatched to Tesla located at the 45000 block of Fremont
Bl for a report of a disturbance. .Officer Kerner spoke with Tesla Security Officer Tyler James who advice he was
speaking with an individual who was not supposed lo be on Tesla property. I later identified !he individual as
. He was parked in a
Randeep Holhi. Randeep was drlving a while Acura TL bearing CA license pli:lte
parking stall. James approached Randeep lo tell him to leave. As James approached the vehicle, Randeep drove
away at a slow rate of speed, Randeep's vehlcie struck James' knee.
Officer Kerner reviewed !he video from Tesla security cameras and advised ii did not appear lo be an Intention.al
act. James al:50 did not believe the driver of the vehicle intended to hit him with his .vehicle. James did not have
any injuries, Officer Kerner acMsed. James the action did not appear intentional and 11 occurred on pri11ate
property. Officer Kerner provided James an incident history number. Tesla Security later fon,varded James photos
of Randeep .and requested contact be made With Randeep.
Due to Officer Kerner being away from work, he requested I attempt to identify Randeep, obtain insurance
information, and his statement.
Kalvinder Singh's Statement:
A records check. of the white 2012 Acura Tl shows the registered owner to be Kalvh;der Singh. I drove to his listed
.
! Prlnted./\l
Re·pt)rt OffleEf
14818/DE!ll'EFANO, JOSE.l?H RICHARD
I
AA677
05/07 /.2019 15: .28
.
EXHIBIT A - p. 2
.
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To:
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01/11/20211:13 PM
190227026
Incident Report
Supplemenl No
ORIG
FREMONT POLICE DEPARTMENT
address at.
Potawatami Dr. I contacted Kalvinder and he tol me the
summary:
Kalvinder aa,vIsEia he is the registered owner of the vehicle, but his son Randeep Hothi drives the vehicle. l
showed Kalvinder the picture provided from Tesla Security. Kalvinder advised that is his son Randeep. Ka!vinder
son. is a college student at the University of Michigan and he studies Philosophy. Kalvinder advised
advised
not home, but provided me his cell phone number.
was
Re,r,rt<>sm
) which covers his Acuna TL.
Kalvinder advised he has PM insurance (Polfcy #
Randeep Hothi's Statement;
I called Randeep and I left him a voit:email asking him to re1urn my phone call. Randeep relumed my phone call
and told me the following in summary:
I asked Randeep to fell me what happened when he was parked on Tesla's property. Randeep told me he was
Randeep did not
sleeping in h.isvehicle al Tesla when he was approached by someone who told him ta
was
individt1al
the
know
not
did
he
stated
Randeep
Security.
Tesla
was
it
know who it .was. I told Randeep
security and the individual wa.s not clearly marked security vehicle.
Document received by the CA 1st District Court of Appeal.
I asked Randeep if we could meet in person and he .stated he was not currently in Fremont.
Randeep said he immediately . the parking lot Randeep was unaware that he hit anything.. I advised Randeep
!he security officer claimed he was hitwith Randeep's vehicle. Randeep was unaware and did not believe he hit
anylhing. Randeep stated there was no damage la his vehicle and e did not intentionally hit the security guard
with his vehicle.
Randeep was unable to specifically explain why he picked Tesla's parking lot to take a nap. Randeep stated it was
just a random parking lot he found.
Body Camera;
My Watch Guard body camera was activated for the .above listed .statements and I later uploaded ihe recordings
toWatch Guard.
Record Checks.:
Randeep was clear any wants/probation. I conducted an RMS check and Randeep was previously listed as a
victim in a battery and a driver in a traffic c.ollision. I searched Randeep's criminal history. Randeep had no prior
arrests.
Disposition:
I advised Officer Kerner of the above. He.will follow up With
The purpose
Security.
this report is for documentation purposes only.
EXHIBIT A - p. 3
1~•N
--
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Pagirl 3 of 3
AA678
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01/11/20211:13 PM
190227026
Incident Report
FREMONT POLICE DEPARTMENT
S:vµpl.emeritNo
0001
Rep1'rt{l\l Oate
2000 Stevenson Blvd.
03/15/2019
RpL~nekje:m! Typ
Frsimont, California 94538
1061
Miimt;m'#
KERNER,MATTHEW JOHN
Pnt:ine Numhex
(510) 790-6800
F.ax Number
Na
POLICE DEPARTMENT
I :S1a!us
!l lOClHM;:,t,
REl?ORT
?
Rpl/lr'/t,G{!!n!
TO FOLLOW
IMISC
190227026
PUBLIC SERVICE
---~·-·"···--------~--r~-------i
!
City
Fremont
: 45500 FREMONT BL
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from Date
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e-n.t. ....T,_r__a_n....;s:....f_e.....r-'-:.................
A Team,
JOHN
l
Prop Tnmr; Slat
~pmvect By
Successful
12039
rpose o this supplemental report is to document my actions in taking Tyler James' statements. Court
Liaison $gt Decker also presented this case to the District Attorney's Office. The DA's Office declined lo
prosecute any crimes regarding this matter.
See narrative
details,
No further action taken, case _closecl.
. PRN
i
No
3l0fll864
Narrative
·
Successful I 1953661
·
Notification
Document received by the CA 1st District Court of Appeal.
....c.c..~~------1
On 0212112019 I, Ofc. Kerner #14792,.was dlspatchecl toTesla, located at 45500 Fremont Blvd, regarding a
subject, later Identified as Randeep Hothi, who was not supposed to be on the property. Dispatch advised the
reporting party, Tyler James, called FPO to report that Hoth! was on their property and he was not supposed to be
there. James contacted Hothi and asked him to leave. When he did leave, Hothi nicked James with his vehicle.
James told dispatch he did not know· if Hothi realized ·he hit James, and did not know·ifhe did it intentionally,
~il!tem@nt ffi frnm Tyler James
I responded to the security office and spoke with James, who in essence, told me the following: James was
working security at Tesla when Hothi came on .the property and was not supposed to.be there. James .stated he
went up to contact Hothi at his driver's side window as he was parked in a parking stall to verify that .he was not an
employee and not supposed lo be on the property, As James was attempting to talk lo Hoth! at his driver'$ side
R@pPn VTd?Ct
14792/KERNER,MATTHEW JOHN"
.
AA679
EXHIBIT 3 - p.
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To:
Fax: (510) 267-1547
Incident Report
FREMONT POLICE DEPARTMENT
Page: 74 of 157
01/11/20211:13 PM
190227026
$upple1t1fJ:l'lt N?
0001
Narrative
window, Hot.hi drove forward out.of.the parking stall that he was backed into and bumped into James' knee as he
was leaving the parking stall. James did say he got bumped into by Hothi's vehicle 011 the way ou1 ofthe parking
stall because it was an angled stall and he did tum lo exit the stalL I asked James if he was injured arid he told me
his knee was starting .lo "flare" up a lillle bit bu! as far as he knew, he had no visible injuries Or bruising. Jarnes
said other secudty officers attempted to drive up fo Hothl to tell him lo stop but he did not stop.. James 1old me he
did have video footage on his work phone l could look at; however, he was not ablei to show me the footage from
lheir security cameras on site. I watched .the video on James' work cellphone and I was unable lo see much ofthe
incident I did .see Hoth! in the vehicle, but I was unable to see anything further to solidify James' statement,
l concluded my interview of James and gave him a business card with the incident history number on ii.
Statement #2 from Tyler James
On 03/15/2019, I look another statement from James due to him saying he has further information, 111 essence, he
told me the following: On 02/21/2019, at approximately 1411 hours, Tesla security got a hit on their license plate
Disposition:
Document received by the CA 1st District Court of Appeal.
readers that there was a vehicle in the lot that was notsupposed to be on the .property, James responded to the
area and saw Hoth.i driving his White Acura TL from the south lot of the factory into the factory lot on the property,
Ho!hi backed his vehicle into a parking stall and parked there, ,James exiled his unmarked Tesla security vehicle
from two stalls away while wearing a marked Tesla security uniform, James approached Hothi while he.was
sea.ted in his vehicle in the driver's seat James walked up to the vehicle and tapped on the .driver's. side window
and asked H0!hi to roll down the window, James said Hothi made eye contact with him, As James asked him to
roll down his window, Hothi began to move around li.ke he was looking for something, After doing so, Hothl drove
forward out of the parking stall. As. Hothi drove forward out of the parking stall, the driver's side door oflhevehicle
struck James' left knee, James told me during this interview that the parking stalls are straight and not angled,
James stated that he did not know If Hothi intentionally hit him as he did not know his mindset. James $aid
secmity officers in marked Tesla security 1.mi!orrns attempted to stop Hothi, but were not successful. James did
not elaborate on whatthey did to try and stop him, After seeing a Doctor, James $aid the injurie$ to his knee was
soft tissue damage, He stated he could see that his lsft knee was more swollen than the right knee, James also
said there were no cuts, scrapes, or visible injuries,
I reviewed the case and video with Sgt Miskella, Lt Tang, and FPD Traffic personnel and. all agreed that it did not
meet the elements of a hit and run,
On 04102119,. Court Liaison Sgt.. Decker presented this case to the District Attorney's Office to determine .if
charges of hit and run were applicable. I provided Sgt Decker with all reports, the CAD printout from the delail
(including notes from the Dispatcher who took the call), and lhe video provided from Tesla Security,
It should be noted that the Dispatcher/Call-Taker noted the followi11g as they spoke with the RIP:
"RP IS WITH .SECURITY • HE WAS ASKING A SUBJ, WHO NOT SUPPOSED TO BE ON THE CAMPUS, TO
LEAVE AND, AS THE SUBJ WAS DOING SO, THEY NICKED THE RP WITH THEIR VEHICLE, WHILE HE WAS
ON FOOT, UNKJF THE DRIVER REALIZED THEY HITTHE RP AND UNK .IF THEY DID IT INTENTIONALLY,
RP DIDN'T SEEM TO THINK SO, BUT WANTS A RPT FOR A HIT AND RUN"
After reviewing these documents and video, the DA's Office declined to prosecute any crimes involving this
incident
No further action taken, case closed,
EXHIBIT A - p. 5
_lll,:fe 2 .of .2
·--------------.,..- -------·---------"'
AA680
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Page: 75 of 157
01/11/20211:13 PM
190227026
Incident Report
$uppr'~roent No:
(l00.2
FREMONT POLICE DEPARTMENT
Reported Dar@
2000 Stevenson Blvd
04/10/2019
RPt/lncldenl ryp
Fremortt, California 94538
1061
MMnber#
DES'l'E!!'ANO,JOSEPH R!CHA
Pf1cm; Number
(510)790-6800
I ~pll
s1at1,111
REPORT 'l'O FOLLOW
cidenttyp
MISC PUBLIC SE!l:ii'ICE
j City
45500 FREMONT BL
·sn1urCa By
RMS Tmn~tm
~---~
:Prop Trans .Stnt
Succeiss;u; [ Suoo~u.cful
14818
Approved By
Approvlos fficer
12636 12ti36
. Fremont
Approval Oate
________ 04/10/2019
Appr6:vrit Timi$
22:36:48
Summa
Narratbte
Document received by the CA 1st District Court of Appeal.
l•~a.Uon
The purpose of this report is to document an attempt to issue Randeep Hothi a warning notice o.f trepass from all
Tesla Properties.
On 04103119, at about 1523 hours, I arrived al Randeep Hothi house on
in an al!empt to give
Randeep a warning Mtice of trespass from (311 Tesla Properties, There was no answer at the front door, I called
Randeep two limes on his cell phone and he did not answer. I !hen called Randeep's father (Kalvinder Singh} who
advised he was almost home, Ka.lvinder told me his son was not home and he did not know when he would return
home, Kalvinder !old me he would call me.when his son got home,
At about 1649 hours, I .called Kalvinder two more !Imes and he did not answer any of my calls. At about .2249
hours, t called Kalvinder and spoke to him ..KaMnder told me his son was an adult and he was nothome. I
explained lo. Kalvinder I was jus! trying to give Randeep a document to close out this case, Kalvinder .got upset
with me and told me he was going to complain to the Chief of Police. I explained to Kalvlnder I was just trying to
close this case out and neither he or Randeep were in any trouble,
On 04/08/19, at about 2050 hours, I called Randeep and there was no answer. I left him another voicemail asking
him to call me back.
On 04/09/19, at about 0046 hours, Randeep returned my phone call, but I did notanswer. Al about 1243 hours, I
called Randeep back and he did not answer, Al about 2031 hours, Ral'ldeep called me. I spoke !aRandeep and
he told me he moved out of the area. and he did not want to meet with me. I explained to Randeep !hat l ju$!
wanted to issue him a trespass warning and he was not in any trouble'. Randeep stated he did not w<1nt to sign it
and he was in San Francisco. I asked Randeep if he would be willing to n1eet With meet on 04/10/19 or 04/11/19.
Randeep told me he was out of the area arid he would have to think about It
I was unable issue Randeep a warning notice of trespass.
EXHIBIT A - p. 6
, -Re-pM Ori:ltttf
1::.4c.:8:..:1:.:8.:c/;:;..DE=c.SccTc.:E;..;;.F.c..AN=.c·.c.O.:..,Jc..Oc.cSc.cE;.;:l?_H_R_I_C_HARD
_ _ _ _ _ _ _-·~··~·"··-···--~~0-5~/-0_7'-/_20_1_9_1_5_:_28_ _ _-;
IJ'!9:e
1 of l
AA681
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01/11/20211:13 PM
DECLARATION
OF
RANDEEP HOTHI
EXHIBIT 4
Document received by the CA 1st District Court of Appeal.
From: The Law Office of D GI Fax: 14154046616
CASE No. RG20069852
DECLARATION OF RANDEEP HOTH!- EXHIIllT 4
AA682
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01/11/20211:13 PM
May 23, 2019
The Honorable Jeffrey S. Brand
Department 511
Alameda Superior Court
Hayward Hall of Justice
24405 Amador Street
Hayward, CA 94544
Tesla, Inc. v. Hothi, RG19015770 (the "Case")
Letter Brief Re Discovery
Your Honor:
I am the attorney for Respondent Randeep Hothi. Pursuant to your
instructions at our bench conference on Tuesday, I submit this letter brief in
support of Hothi's request to propound discovery in this Case.
PROCEDURAL HISTORY
Petitioner, Tesla, Inc. filed this action on April 19, 2019. On an unnoticed ex
parte petition, the Court issued a temporary restraining order against
Randeep Hothi and set a hearing on the restraining order for May 7, 2019.
Hothi, on May l, 2019, filed a Request to Continue Hearing which included
a request that the Court schedule a long-form evidentiary hearing with
allowance of sufficient time for limited discovery. Judge Patrick R. McKinney
granted the requested continuance, re-calendaring the hearing for May
21, 2019. Although the continuance was requested for good cause, Judge
McKinney based the continuance on the right of a respondent to obtain
one continuance as a matter of right. 1 Regarding discovery the Court
ordered:
1
At the May 21, 2019, I incorrectly stated that Your Honor had issued that Order.
AA683
Document received by the CA 1st District Court of Appeal.
Re:
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Tesla, Inc. v. Hothi, RG/9015770
May 23, 2019
Page 2 of 9
This case is a summary proceeding and there is normally no
opportunity for discovery. Respondent's scheduling requests
and request for discovery may be agreed upon by the parties
or addressed at the hearing.
On May 2, 2019, I sent limited documents requests to Tesla's counsel and
asked that Tesla voluntarily provide the requested documents. Those
requests included the following:
Any and all "documents" including all video, still photographs, or
other recordings taken, made, created, or recorded by Matt Cross, Robert
Temmerman, James McDonald, or anyone else in the car, at any time
during the April 16, 2019 journey to film the Navigate on Autopilot features
described in the declarations of Christine Leslie, Matt Cross, Robert
Temmerman, or James McDonald from the beginning of the journey until
the end.
Request No. Two:
Any and all "documents," including video, still photographs, or other
recordings taken, made, created, or recorded at any time on April 16, 2019
by equipment attached to or installed in the Tesla Model 3 described in the
declarations of Christine Leslie, Matt Cross, Robert Temmerman, and James
McDonald.
Request No. Three:
Any and all "documents," data, or reports that recorded the
engagement of the Model 3's side-collision (crash) avoidance system as
described in paragraph three of Christine Leslie's declaration.
Request No. Four:
Any and all "incident reports" created at the time of the April 16, 2019
incident described in paragraph 3 of Christine Leslie's declaration.
Request No. Five:
AA684
Document received by the CA 1st District Court of Appeal.
Request No. One:
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Tesla, Inc. v. Hothi, RG/9015770
May 23, 2019
Page 3 of 9
Any and all "incident reports" created at the time of the February 21,
2019 incident described in paragraph 2 of Christine Leslie's declaration.
Request No. Six:
Any and all documents including photographs, video, or other
recordings made of the February 21, 2019 incident described in paragraph
2 of Christine Leslie's declaration.
Request No. Seven:
Any and all "documents" that describe, relate to or evidence any
injuries sustained by Tyler James during the February 2 L 2019 incident as
described in his declaration.
"Documents" sufficient to establish that Tyler James, Matt Cross,
Robert Temmerman, and James McDonald were Tesla employees at the
time of the alleged incidents with social security numbers or other personal
information redacted.
Request No. Nine:
Any and all non-privileged statements, correspondence, or other
"documents," in your possession that refer to Plaintiff, whether by his name
Randeep Hothi, skabooshka, or any other name that have been created,
recorded, reviewed, or transmitted within the last 12 months.
Request No. Ten:
The police report referred to in paragraph one of the Christine Leslie
Declaration at bullet point 5, sub-point 3. If "You" do not have a copy of
the police report, please provide any document that identifies the incident
number or other Identifying number of the report.
Request No. Eleven:
A copy of any police report generated in relation the investigation
referred to in Christine Leslie's Declaration at paragraph 2, bullet point five.
If "You" do not have a copy of the police report, please provide any
AA685
Document received by the CA 1st District Court of Appeal.
Request No. Eight:
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Tesla, Inc. v. Hothi, RG/9015770
May 23, 2019
Page 4 of 9
document that identifies the incident number or other identifying number
of the report.
More than a week later, Tesla's counsel, Mr. Alinder, informed me Tesla
would not comply with the discovery requests, and cited as support Thomas
v. Quintero. (2005) 126 Cal.App.4th 635, 650 [24 Cal.Rptr.3d 619]
On May 2L 2019, when the Court (with the stipulation of the Parties)
continued the hearing to July 26, 2019, I renewed Hothi's request to take
discovery.
Numerous cases support Judge McKinney's statement that in summary
proceedings, there is normally no opportunity for discovery." However, let
us consider the obvious reason, which is apparent from a review of the
relevant statutes and cases law: discovery is normally unavailable in
summary proceedings because hearings on restraining orders must be held
within 21 days of the issuance of a TRO or 21 days of filing of the petition if
no TRO is issued. Cal. Code Civ. Pro. §527.8(h).
Here, we no longer have any such time constraint. There are more than two
months until our July 26 hearing. Moreover, we first made our very narrow
production requests on May 2. We have, in short, an abnormal luxury of
ample time for the limited discovery we seek.
So, we would ask the Court to consider the general rule. A party is entitled
to discovery as "a matter of right unless statutory or public policy
considerations clearly prohibit it." (Greyhound Corp. v. Superior (1961) 56
Cal.2d 355, interpreting the Discovery Act of 1957). California courts have
reiterated that discovery provisions in the Civil Discovery Act of 1986 (CCP
2016-2036) and the Civil Discovery Act (CCP 2016.010-2036.050), which
replaces it, are to be liberally construed in favor of disclosure. (Flagship
Theaters of Palm Des., LLC v. Century Theaters, Inc. (2011) 198 CA4th 1366,
1383).
No language in the harassment statutes, or anywhere else in the California
Code, limits the right to discovery in actions brought under §527.8. While the
AA686
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LEGAL STANDARD
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Quintero case relied upon by Tesla does say discovery is not normally
allowed, it by no means says that discovery may never be allowed.
Moreover, the trial court could order that discovery in
connection with a pending special motion to strike take place
only after the hearing on the civil harassment petition. To do
otherwise could arguably be an abuse of discretion if a trial
court allowed discovery to go forward at a time, or in a
manner, which interfered in any way with the prompt hearing
on a petition under section 527.6.
/Quintero, 126 Cal.App.4th at 628-29 (emphasis added)). The implication is
that discovery occurring in the midst of a pending petition for injunctive
relief is offensive only if (as would typically be the case where timetables
are tight) it might interfere with a prompt hearing on the injunction. Again,
in the Case before this Court, we now have the luxury of time.
GOOD CAUSE AND RELEVANCY
Now, to explain why the discovery Hothi seeks is vitally important in this
Case.
Tesla's pleadings allege two key events, both of which Tesla claims were
"violent and intimidating confrontations" (Petition for TRO, Form WV-100 at
Item 5):
First, on incident on February 21, 2019 in the parking lot at Tesla's Fremont
factory where, according to Tesla, Hothi "hit Tesla's security employee Tyler
James with his car" and then "fled the scene" [id.] driving "quickly and
AA687
Document received by the CA 1st District Court of Appeal.
As for the Thomas v. Quintero case relied upon by Tesla, there the court was
called upon to determine whether a petition for injunctive relief under
California's civil harassment statute is subject to a special motion to strike
under the anti-SLAPP statute. The party contending that a special motion
to strike was unavailable argued that discovery in the special motion would
inhibit disposition of the petition for injunctive relief. The court disagreed. It
held that the petition for injunctive relief was subject to a special motion to
strike, and explained why the latter need not interfere with the former:
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recklessly out of the parking spot" [id., Christine Leslie Deel. at 2]
"Parking Lot Incident") and
(the
Second, an incident on April 16, 2019 when for 35 minutes or so Hothi
observed a Tesla Model 3 car that was engaged in autonomous driving
testing, during which, according to Tesla, Hothi "stalked, harassed, and
endangered" the car's occupants, "swerving dangerously close," thereby
causing the occupants to fear Hothi's conduct "would cause a collision
and injure them." (the "Roadway Incident").
Discovery Regarding the Parking Lot Incident
As to the Parking Lot Incident four key questions arise:
(2) In so exiting the space, did Hothi's car strike Tyler Jomes?
(3) If so, does it appear Hothi intended to strike Jomes? and
(4) What prompted Tesla to send its security personnel to Hothi's car
in the first place?
Hothi' s Requests 5, 6, 7, 9, 10, and 11 ore all narrowly framed to answer these
key questions.
Request 5 seeks all "incident reports" relating to the Parking Lot Incident.
Note that the police report attached to the Hothi Declaration that is port
of Hothi's Response contradicts the claim of Christine Leslie (who was not a
witness to the event) that Hothi exited his space "quickly and recklessly."
Tyler James evidently told the police that as James approached the
vehicle, "Rondeep drove away at a slow rote of speed."
Request 6 seeks photographs, video, or other recordings of the Parking Lot
Incident. Tesla hos cell phone and security camera video of the event. The
police have seen those videos, as have the prosecutors who, after
watching them, declined to prosecute for hit and run. This is obviously
important and potentially exculpatory evidence.
Request 7 seeks all documents describing or evidencing injuries sustained
by Tyler James incident. Notably, in the police report prepared the day of
AA688
Document received by the CA 1st District Court of Appeal.
(1) At what speed did Hothi exit his parking space?
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Request 9 seeks Tesla's file on Hothi. Why is this important? It is evident from
the Christine Leslie Declaration that Tesla put Hothi on its "enemies list" at
least as early as the Spring of 2018. It appears from the police report that
Tesla security knew Hothi had entered the property ("On 02/21/2019, at
approximately 1411 hours, Tesla security got a hit on their license plate
readers that there was a vehicle in the lot that was not supposed to be on
the property.") Hothi will show that Tesla treated him quite differently from
other visitors to the Fremont parking lots, who are able to come and go
unmolested. The file on Hothi will show why: Tesla, with a long history of
punishing its critics, was determined to punish Hothi.
Hothi already has obtained the police reports sought in Requests 1oand 11,
so there is no need for Tesla to produce them.
Discovery Regarding the Roadway Incident
As to the Roadway Incident, the question is, did Mr. Hothi, as Tesla alleges,
"swerve dangerously close" to the Tesla vehicle in such a manner as to
amount to "a credible threat of violence"?
Requests 1. 2. 3. 4. and 8 are all narrowly framed to answer this question.
Requests 1. 2.
3.
and 4 seek documents, photographs, and video of the
Roadway Incident. There is simply no doubt Tesla has this evidence.
The Tesla Model 3 has eight integrated cameras. Tesla's great boast about
its supposedly imminent "Full Self-Driving" capabilities is that the cameras
transmit to Tesla headquarters video and other data that enables Tesla to
develop and refine software for its "Autopilot."
There were two additional cameras mounted on the roof. There were two
passengers in the back seat with cell phones that functioned as cameras.
AA689
Document received by the CA 1st District Court of Appeal.
the incident. there is no mention of any injury. Three weeks later, though,
Mr. Tyler claimed he had sought medical attention. Tesla has employed
doctors who have unethically minimized injuries to its employees. See,
Inside Tesla's factory, a medical clinic designed to ignore injure workers,
revealnews.org, Nov. 5, 2018, attached hereto as Exhibit A. Hothi should be
allowed to test whether those same compliant doctors are also willing to
invent injuries when circumstances dictate that is in Tesla's interest.
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If Hothi was actually driving in such a way as to endanger the occupants
of the Model 3 car, then there is no question the video evidence exists to
demonstrate that behavior. Tesla has it and should produce it in advance
of the hearing. All 35 minutes of it.
In addition to the narrow discovery sought from Tesla, Hothi also requests
that he be allowed to propound focused third party discovery as well.
Specifically, Hothi seeks to serve subpoenas on the Fremont and San
Francisco Police Departments relevant to the Parking Lot Incident and
Roadway Incident. Again, there is no possibility that such discovery will
delay the disposition of this matter. However, it may well inform the
disposition.
HEARING PROCEDURES
As the Court indicated at the May 21, 2019 bench conference, this matter
is more complicated and requires more time than the average restraining
order hearing. In order to assist the attorneys prepare in a manner that is
most efficient for the Court Hothi requests that the Court direct the parties
to exchange witness lists a week prior to the hearing.
Also, counsel previously inquired with the court clerk about the ability to
show video exhibits during the hearing. The clerk indicated it was best to
have video available on a tablet or other device. Counsel would like to
confirm that this is the Court's preference. Counsel will also have video
exhibits available on thumb drive or DVD.
AA690
Document received by the CA 1st District Court of Appeal.
Request 8 seeks evidence that the occupants of the car were actually, as
Tesla alleges, Tesla employees. The request expressly permits Tesla to redact
data such as Social Security Numbers. Note that Mr. James is the owner of
a private investigation company hired by Tesla and does not appear to be
a Tesla employ as claimed in the Petition. See, https://jsgfirm.com/ourteam/.
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CONCLUSION
This is an unusual case that has attracted widespread media attention. The
harm in this case to Hothi's reputation is quite real. Already, scores of Tesla
fans have attacked him in social media, claiming he is a terrorist, a criminal,
a liar.
Respectfully,
D. GILL SPERLEIN
Attorney for Respondent Randeep Hothi
cc:
Zachary J. Alinder
Ellen P. Liu
AA691
Document received by the CA 1st District Court of Appeal.
Under these circumstances, and given the narrow framing of Hothi's
production requests, we respectfully ask this Court to order Tesla to produce
the items sought in Requests l through 9 and to grant Hothi the right to
subpoena the Fremont and San Francisco police departments for
information arising out of the Parking Lot Incident and Highway Incident
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DECLARATION
OF
RANDEEP HOTHI
EXHIBIT 5
Document received by the CA 1st District Court of Appeal.
From: The Law Office of D GI Fax: 14154046616
CASE No. RG20069852
DECLARATION OF RANDEEP HOTH!- EXHIIllT 5
AA692
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One Embarcadero Cent~r, Twenty~Sel.'.ond Floor
SIDEMAN =
BANCROFT
1
San Frandsco, Callfornla 94111~3711
Telephone: (415) 392~1960
Facsimile: {415) 392-0827
Zachary J. Allnder
zallnder@sideman.com
June 3, 2019
The Honorable Jeffrey S. Brand
Alameda County Superior Court
Department 511
Hayward Hall of Justice
24405 Amador Street
Hayward, CA 94544
Tesla, Inc. v. Randeep Hoth/, Case No. RG19015770
Dear Judge Brand:
Petitioner Tesla, Inc. ("Tesla") respectfully requests that the Court deny the discovery
sought by Respondent Randeep Hothi ("Mr. Hothi") in his May 23, 2019 discovery letter brief.
Mr. Hothi seeks far more intrusive, burdensome-and irrelevant-discovery than his counsel
represented to the Court at the May 21 hearing. Meanwhile, the law does not provide for any
1
discovery in this summary proceeding: "[t]here is no provision under section 527.6 allowing for
discovery," and "no case holds that discovery is allowed under section 527.6." Thomas v.
Quintero, 126 Cal. App. 4th 635, 650 (2005). The fact that the hearing has been continued
because of the unavailability of Mr. Hothi's counsel-and the fact that Mr. Hothi apparently
would like to spend the more than $100,000 crowd-funded for his defense-are not reasons to
depart from established precedent or permit Mr. Hothi to transform this summary proceeding
into a full-blown litigation circus.
To put Mr. Hothi's requests into perspective, Mr. Hothi is a Tesla short-seller who has
dedicated years of his life to "researching" alleged corporate "malfeasance" at Tesla--during
which he has unlawfully trespassed at Tesla's Fremont factory innumerable times, planted
cameras on Tesla's private property, and more recently, hit a Tesla employee in the Tesla
parking lot and harassed and intimidated Tesla employees driving on public roads. Mr. Hothi
gains notoriety by posting the results of his "research" for his followers on Twitter, which is no
doubt what he hopes to do with any non-public materials he might reeeive here. In short, Mr.
Hothi's "discovery" requests must be seen for the fishing expedition they are-attempts to get
1
The provisions of CCP 527.8, the statute that governs workplace violence restraining
orders, are parallel to those in CCP 527.6, which govern civil harassment orders. Scripps Health
v. Marin (1999) 72 Cal.App.4th 324, 333. Therefore, the reasons why discovery is not allowed
in section 527.6 proceedings apply equally to this section 527.8 proceeding before Your Honor.
AA693
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Re:
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The Honorable Jeffrey S. Brand
June3,2019
Page 2
non-public information about Tesla, including the partially-autonomous drive that he broke the
law and harassed Tesla's employees to record. Other requests, seeking "incident reports" and
Tesla's complete files related to Mr. Hothi, would reveal Tesla's highly confidential security
protocols and investigative methods, along with information that is privileged, and would
undermine Tesla's ability to keep all employees safe from future threats, including Mr. Hothi.
Discovery of these materials should be categorically denied, especially in a summary proceeding
designed to protect employees, like this one.
Again, Tesla believes that no discovery is permitted in this proceeding. However, if
discovery is allowed, Mr. Hothi should be required to produce reciprocal discovery, including at
a minimum, for the last twelve months: (1) all documents (including emails, texts, photographs,
and Twitter messages) evidencing, referencing, or discussing his presence at the Fremont
factory, including on February 21, 2019 and any other date, (2) all documents discussing or
evidencing his pursuit of the Tesla vehicle on April 16, 2019, including photographs and videos.
Finally, if any discovery is allowed, it should be accompanied by the entry of an
appropriate protective order.
RELEVANT FACTUAL BACKGROUND
Mr. Hothi is part of a group of Tesla short sellers, identifying themselves as TSLAQ,
signifying their hope for Tesla to go bankrupt. See https://www.investopedia.com/terms/g/g.asp.
With gratitud~ !or all my ptopl~, I heliwe I
~m liborat~d from purgatory. Yo1J\•Q rn·
a11imated me, and now! am •livif1ed. And
fortify myself, and l s.il\' this;
No rupite u1111I we pl~y the dirg, of ovr
d.adi11g corporat~ m~l;ifaC!or.
No res! ~nt1I 1SLAQ.
AA694
,or
Document received by the CA 1st District Court of Appeal.
The law provides Mr. Hothi with the right to a hearing on Tesla's application, which is
the exclusive statutory mechanism for the Court to decide whether to extend the preliminary
restraining order. Mr. Hothi will have the right to testify and have his ercdibility decided by the
Court,just as the Court will deeide the credibility of Tesla's employees' accounts of the events at
issue. The proceedings here do not allow for discovery, and none is warranted. As a matter of
public policy and consistent with the law, Mr. Hothi should not be allowed to turn his own illegal
conduct and his counsel's unavailability into a tool for his "research" or fodder for his Twitter
account
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The Honorable Jeffrey S. Brand
June 3, 2019
Page 3
See 5/2112019 Alinder Declaration, 11 2 & 4. Over the past year, Mr. Hothi has posted
numerous photos of Tesla's employee and contractor parking lot (see id., 15 & Ex. A), and more
recently has planted portable cameras on Tesla property at least twice. See 4/19/2019 Leslie
Declaration at p. 1. But what appears to have started as an unlawful, but non-violent, attempt to
glean non-public information to help his short selling efforts has escalated rapidly over the past
six months into more serious and threatening conduct.
Mr. Hothi told police ofticers that he was taking a nap in a random parking lot. See
5/17/2019 Hothi Declaration, Ex. A at p. 3 ("Randeep told me that he was sleeping in his vehicle
at Tesla when he was approached by someone who told him to leave .... Randeep was unable to
specifically explain why he picked Tesla's parking lot to take a nap. Randeep stated it was just a
random parking lot he found."). Meanwhile, Mr. Hothi told a completely different, but equally
implausible, story to this Court in his May 17, 2019 Declaration, claiming that he was there to
visit the Tesla showroom. See 5/17/2019 Hothi Declaration, 14. As Mr. Hothi knows from his
frequent trespassing, the employee parking lot is not anywhere near the Tesla showroom. See
5/21/2019 Leslie Declaration, 13 & Ex. A.
Finally, on April 16th, Mr. Hothi's conduct escalated further when he used his car to tail,
move around, and swerve next to, a Tesla car as it was driving from Tesla's Fremont facility up
the 880 to the Bay Bridge. See 4/19/2019 Employee Declarations.· He even continued to follow
the test car after it exited the Bay Bridge on Treasure Island. See id. Those employees
understandably feared for their personal safety. See id. They called the police, and had no prior
knowledge of Mr. Hothi. See id.
On April 20th, after Tesla's April 19 Restraining Order was entered against him, Mr.
Hothi did not show contrition or remorse for his actions, but rather responded with another bonechilling tweet, "promis[ing]" not to stop his campaign against Tesla and its employees:
AA695
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In February, Mr. Hothi was caught staking out an employee parking lot, clipping the leg
of a Tesla security officer as he departed. See 4119/20 I 9 James Declaration, p. I. Mr. Hothi has
not been truthful about that incident.
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The Honorable Jeffrey S. Brand
June 3, 2019
Page4
skabooshka«tsk8bQOSl11~~
not rest
Is a zem.
is my omn1is11.
· will go to
Prior to the May 21 hearing, Tesla also sought Mr. Hothi's agreement to just stipulate to
stay away from the two Tesla facilities at issue, including the one for which the Fremont police
have already issued a no-trespass warning. See 5/21/2019 Alinder Declaration, ,r 7. Mr. Hothi
refused. See id. In short, Mr. Hothi has confirmed, subsequent to the filing of this action, a high
probability that his misconduct, and endangerment of Tesla employees, will be repeated in the
future.
RELEVANT PROCEDURAL BACKGROUND
On April 19, 2019, Tesla sought a workplace violence restraining order against Mr.
Hothi, arising out of the threat of violence that he posed to Tesla's employees. On May 1, 2019,
Mr. Hothi filed a Request to Continue Hearing, which included a request that the Court allow
discovery. The Court granted Mr. Hothi's requested continuance, re-calendaring the hearing for
May 21, 2019. The Court did not order any discovery, but instead noted that "[t]his case is a
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I
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The Honorable Jeffrey S. Brand
June 3,2019
Page 5
summary proceeding and there is nonnally no opportunity for discovery." The Court invited the
parties to agree to any discovery or to discuss the discovery requests at the May 21 hearing.
On May 2, 2019, counsel for Mr. Hothi ("Mr. Sperlein") sent a formal set of eleven
document requests to Tesla's counsel, asking for significant discovery of"any and all"
documents related to numerous topics. See Hothi Discovery Letter Brief, pp. 2-4.
"We have reviewed the Court's order eontinuing the hearing at your client's
request, as well as your May 2nd letter and requested discovery. As an initial
matter, the Court noted in its order that "[t]his case is a summary proceeding and
there is normally no opportunity for discovery." Consistent with the Court's
order, we do not believe discovery is appropriate in this case, and we are not
aware of any basis under the law for your discovery requests. Indeed, the only
relevant authorities that we have found confirm that there is no discovery in such
summary proceedings. See, e.g., Thomas v. Quintero, 126 Cal. App. 4th 635, 650
(2005). If you can provide any legal authority to support discovery requests in
this context, however, we would be happy to consider it. We are also happy to
st
discuss further at the hearing currently scheduled for May 21 .''
Mr. Sperlein did not provide any relevant legal authority in response to my email,
confinning that he did not have any legal support for the discovery requests.
At the May 21, 2019 hearing, the Court continued the hearing to July 26, 2019, primarily
due to Mr. Sperlein's unavailability in June, and Mr. Sperlein renewed Mr. Hothi's request to
take discovery. Mr. Sperlein represented to the Court that he was only requesting discovery of
any video that may exist regarding two events -- the February 21 parking lot incident and the
April 16 drive incident. Even with that more limited scope, the Court asked Mr. Sperlein to set
forth his request for discovery in a letter brief.
Mr. Sperlein filed his discovery letter brief on May 23, 2019. In it, Mr. Sperlein reversed
course from his statements at the May 21 hearing. Rather than asking for two videos, Mr.
Sperlein has reverted to the far-ranging requests from his original set, nine in all, removing only
the two requests for which Mr. Hothi was able to obtain docmnents himself. The May 23
discovery letter brief confinns that Mr. Hothi is not entitled to discovery, and that his requests
are an attempt to leverage his own illegal conduct and his counsel's unavailability into a Tesla
fishing expedition.
RELEVANT LEGAL STANDARD
Tesla's application is made pursuant to CCP § 527.8, which sets forth a detailed
procedure for expedited decision on a workplace violence application. The statute makes no
AA697
Document received by the CA 1st District Court of Appeal.
On Monday, May 6, I responded to Mr. Sperlein that I had been out of the office, but
would review his requests and respond by the end of the week. On May 10, I responded to Mr.
Sperlein's requested diseovery as follows:
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Page 6
provision for discovery, and instead provides the Respondent with the opportunity to present
evidence at "the hearing," which is where "the judge shall receive any testimony that is relevant
and may make an independent inquiry." CCP § 527.80). The trade off, from Tesla's
perspective, is that the need for a restraining order must be proved by "clear and convincing"
evidence. Id.
Mr. Hothi's only argument in suppoti of his request for discovery now is that because the
Court has rescheduled the hearing for July 26,2019 to accommodate Mr. Sperlein's
unavailability in June, there may be enough time to conduct discovery. But the crux of Thomas
v. Quintero was not the shminess of time, but the fact that "[t]here is no provision under section
527.6 allowing for discovery." l11e discovery letter brief cites no authority, and Tesla is aware
of none, applying normal civil litigation discovery rules to summary proceeding like this one.
In summary, Mr. Hothi has not cited to a single case where discovery was allowed in a
CCP §§ 527.6 or 527.8 case and has not justified why the Court should be the first to make an
exception, all because Respondent's counsel is unavailable for a hearing in June.
TESLA PROPERLY OBJECTED TO MR. HOTHl'S DISCOVERY REQUESTS
Even if the discovery standard in a normal civil litigation applied (though it does not),
Mr. Hothi would not be entitled to the overbroad, unduly burdensome, and intrusive discovery
that he seeks here. Each request is objectionable for at least the following reasons4:
2
As set forth in Footnote No. 1 above, the provisions ofCCP 527.8, the statute that
governs workplace violence restraining orders, are parallel to those in CCP 527 .6.
3
All of the cases cited by Mr. Hothi (see Hothi Brief at p. 4, citing Greyhound Corp. v.
Superior, 56 Cal. 2d 355 (I 961 ), and Flagship Theaters ofPalm Des., LLC v. Century Theaters,
Inc., 198 Cal. App. 4th 1366 (2011)) are inapposite because they interpret the Civil Discovery
Act, not the statutes governing this proceeding, and thus are neither relevant nor helpful.
4
To the extent that any formal response to Mr. Hothi's discovery requests served on May
2, 2019 is required, the following objections constitute Tesla's specific response to each request.
AA698
Document received by the CA 1st District Court of Appeal.
Mr. Hothi has had weeks to locate any legal authority that declines to follow or otherwise
distinguishes Thomas v. Quintero, 126 Cal. App. 4th 635, 650 (2005), where the court held:
"There is no provision under section 527.6 allowing for discovery, and in any case, under the
2
civil harassment scheme there is insufficient time in which to conduct discovery." Despite
having multiple opportunities to do so, Mr. Hothi has failed to provide any relevant legal
authority to the contrary and in fact conceded in his brief that"[ n]umerous cases support Judge
McKinney's statement that in summary proceedings, there is normally no opportunity for
discovery" (Hothi Brief at p. 4). 3
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• Request No. 1 (any and all documents including video taken by
Cross/Temmerman/McDonald on April 16 drive): Objectionable as it calls for
confidential/proprietary/private information, is unduly burdensome and overbroad
in the use of any and all. The requests are also overbroad insofar as they seek
confidential video, recordings. and photos that do not depict Mr. Hothi or have
anything to do with the conduct at issue.
• Request No. 2 (any and all documents including video described in
Leslie/Cross/Temmerman/Cross declarations): Objectionable as it calls for
confidential/proprietary information, is unduly burdensome and overbroad in the
use of any and all, and is duplicative since the information is already detailed in
the declarations themselves or is within Hothi's .control. The requests are also
overbroad insofar as they seek confidential video, recordings, and photos that do
not depict Mr. Hothi or have anything to do with the conduct at issue.
• Request No. 3 (any and all documents that recorded engagement of side
collision avoidance system): Objectionable as it calls for confidential/proprietary
information, is unduly burdensome in the use of any and all, overbroad in the use
of any and all.
• Request No. 4 (any and all "incident reports" described in the Leslie
declaration re April 16): Objectionable as it calls for confidential/proprietary
information, is unduly burdensome and overbroad in the use of any and all, vague
and ambiguous in the term "incident reports," and seeks attorney work product or
privileged infonnation based on the vague and ambiguous term "incident reports."
Would also reveal Tesla's highly sensitive, confidential security protocols and
investigative methods, and would prejudice Tesla's efforts to keep all employees
safe.
• Request No. 5 (any and all "incident reports" described in the Leslie
declaration re February 21 ): Objectionable as it calls for
confidential/proprietary information, is unduly burdensome and overbroad in the
use of any and all, vague and ambiguous in the term "incident reports," and seeks
attorney work product or privileged information based on the vague and
ambiguous term "incident reports." Would also reveal Tesla's highly sensitive,
confidential security protocols and investigative methods, and would prejudice
Tesla's efforts to keep all employees safe.
• Request No. 6 (any and all documents including photos, video made of
February 21 incident): Objectionable as it calls for confidential/proprietary
information, is unduly burdensome in the use of any and all, overbroad in the use
of any and all, and may improperly seek attorney work product or privilege
information based on the use of the undefined term "made of."
• Request No. 7 (any and all documents that describe, relate to or evidence
injuries sustained by Tyler James): Objectionable as it calls for
confidential/private medical infonnation, is unduly burdensome in the use of any
and all, overbroad in the use of any and all, vague and ambiguous in the term
"incident reports," and improperly seeks attorney work product and privileged
AA699
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The Honorable Jeffrey S. Brand
June 3, 2019
Page 7
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infonnation in the use of the tem1s "describe, relate to or evidence." Producing
the requested documents would also reveal Tesla's highly sensitive, confidential
security protocols and investigative methods, and would prejudice Tesla's efforts
to keep all employees safe.
• Request No. 8 (documents establishing that James/Crossffemmerman/
McDonald were Tesla employees): This request is
duplicative/cumulative/unduly burdensome as to Cross/Temmennan/McDonald,
as they have each put in declarations in this matter, and there is no reason to
5
question their status as employees at the time of the incident.
• Request No. 9 (any and all non-privileged documents re Mr.
Hothi/Skabooshka): Objectionable as it is unduly burdensome in the use of any
and all, overbroad in the use of any and all. It would be a significant undertaking
to search one person's email inbox for all documents related to an identified
person-particularly after litigation has commenced-let alone the inboxes of
everyone in the company. Would also reveal Tesla's highly sensitive, confidential
security protocols and investigative methods, as well as privileged materials, and
would prejudice Tesla's efforts to keep all employees safe.
Most of Mr. Hothi's requests have nothing to do with the ultimate issue: whether the
listed Tesla employees in need of protection suffered unlawful violence or a credible threat of
violence (see CCP 527.S(a)). His request at the May 21 hearing for videos/photos depicting Mr.
Hothi's driving on February 21 and April 16 may contain some infonnation that is relevant.
Even then, however, only the portions that actually show Mr. Hothi's conduct are actually
relevant. The rest of the videos, while undoubtedly of interest to a short-seller like Mr. Hothi,
are not relevant, are highly confidential, and do not belong in Mr. Hothi's hands.
MR. HOTHI DOES NOT, AND CANNOT, JUSTIFY HIS INTRUSIVE AND
BURDENSOME DISCOVERY
In his letter brief, Mr. Hothi claims to seek answers to four irrelevant questions relating to
an incident on February 21 involving a Tesla employee who is not one of the three listed Tesla
employees in need of protection: "(l) At what speed did Hothi exit his parking space? (2) In so
exiting the space, did Hothi's car strike Tyler James? (3) If so, does it appear Hothi intended to
strike James? and (4) What prompted Tesla to send its security personnel to Hothi's car in the
first place?" (see Hothi Brief at p. 6, Requests 5,6, 7,9).
None of Mr. Hothi's questions regarding the incident on February 21 are relevant to
whether Tesla employees suffered unlawful violence or a credible threat of violence on April 16,
2019. The February 21 incident is only relevant to show Mr. Hothi's pattern of illegal behavior,
his increasingly violent actions, and his false statements about the incident. It is not relevant to
5
Note that Mr. Temmennan has since left Tesla's employ. As such, and to the extent the
Court finds it appropriate, Mr. Temmerman may be removed from the order.
AA700
Document received by the CA 1st District Court of Appeal.
The Honorable Jeffrey S. Brand
June 3, 2019
Page 8
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The Honorable Jeffrey S. Brand
June 3, 2019
Page 9
Mr. Hothi's remaining requests (1, 2, 3, 4, and 8) allegedly seek broad and intrusive
discovery relating to the April 16, 2019 incident, where he used his car to tail, move around, and
swerve next to a Tesla test car as it was driving from Tesla's Fremont factory up the 880 to the
Bay Bridge. Because Mr. Hothi took pictures and videos of the drive himself (in violation of
California's vehicle cocles), he already has in his possession the evidence he needs for his
attempted defense. He brought a binder full of those videos/pictures to the May 21 court hearing
- with multiple videos and dozens ofphotos in all. He has not shown good cause to obtain any
of Tesla's highly confidential and proprietary demo videos, photographs, vehicle data, and
documents (Request Nos. I, 2, 3)-the very type of information he was trying to get when he
pursued the Tesla employees' car on April 16. Nor has he established how Tesla's confidential
and potentially privileged/work product internal documents regarding the incident should be
discoverable (Request No. 4). Importantly, disclosure of these documents would reveal highly
confidential details of Tesla's security protocols, investigative procedures, and other sensitive
information, and would undermine Tesla's efforts to protect its employees from trespassers and
other threats at the Fremont factory and elsewhere. Finally, Mr. Hotl1i's request for additional
proof of employment for the Tesla employees in the test car (Request No. 8), when they have
already submitted sworn statements that they were working for Tesla on April 16, 2019, is on its
face cumulative, duplicative, and unduly burdensome.
Mr. Hothi's nine requests seek the disclosure of highly confidential and proprietary
information that is not remotely justified in such a summary proceeding. The discovery sought
here would also impose a significant and undue burden of cost and time on Tesla and its counsel
to collect, review, and produce the responsive documents, as well as to produce a privilege logprocesses that occur in civil discovery over a matter of many months at a minimum. Mr.
Hothi's requests also raise serious public policy concerns, as subjecting a Petitioner employer to
intrusive discovery on workplace violence applications would subvert the very purpose of these
summary proceedings, would discourage future applications, and delay prompt decisions on
others. The Court should not make an exception for Mr, Hothi here.
6
Mr. Hothi's theory that Mr. James is making up his injuries is undercut by his father's
sworn statement that on February 21, 2019, a police officer visited their home investigating Mr.
James' claims that Mr. Hothi hit him with his ear. Declaration ofKalvinder Singh at 15.
AA701
Document received by the CA 1st District Court of Appeal.
the Court's determination here whether Mr. Hothi intended to strike Tyler James (see City of San
Jose v. Garbett, 190 Cal. App. 4th 526, 538 (2010)), whether Hothi was criminally prosecuted for
6
the hit and run on February 21, or whether Mr. James suffered serious injuries. On the other
hand, the documents sought by Mr. Hothi would disclose Tesla's highly sensitive, confidential
security protocols and investigative methods, along with material protected by the attorney-client
privilege and attorney work product (Request Nos. 5, 6, 9), and Mr. James' medical records
(Request No. 7). Accordingly, none of the records Mr. Hothi seeks regarding the February 21
incident should be discoverable. At most, only those portions of any video/photos that depict
Mr. Hothi' s dangerous conduct are relevant to this proceeding.
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The Honorable Jeffrey S. Brand
June 3, 2019
Page 10
In short, the Court should deny all discovery requested by Mr. Hothi. However, should
the Court allow any discovery before the July 26 hearing, the Court should limit the discovery to
only il)clude those portions of any video and photographic images depicting Mr. Hothi 's
threatening conduct against Tesla's employees.
IF DISCOVERY IS ALLOWED, IT MUST BE RECIPROCAL AND SUBJECT TO AN
ATTORNEYS' EYES ONLY PROTECTIVE ORDER
Regardless of the scope, to the extent that the Court allows any discovery, Tesla would
need a strict protective order forbidding the use of any Tesla confidential/proprietary information
outside of the July 26 hearing-and restricting Tesla's confidential information to Attorneys'
Eyes Only. Mr. Hothi's discovery implicates significant confidentiality concerns in general, as
discussed above, but those concerns are amplified with respect to Mr. Hothi, who spends vast
amounts of his free time trying to get his hands on Tesla confidential information, and who is a
short-seller with financial and reputational interests in harming Tesla. Mr. Hothi's proposed
discovery, including video and photographic evidence, seeks disclosure of non-public and
sensitive business information, as well a~ highly confidential details of Tesla's security
protocols, investigative procedures, and other sensitive information, the disclosure of which
would undermine Tesla's efforts to keep its employees safe.
Finally, to the extent that the Court is inclined to allow discovery beyond the portions of
the two videos and Mr. Hothi's reciprocal evidence discussed above, the Cou1t should order Mr.
Hothi to pay for the document collection, review, and production costs. See Civil Serv.
Employees Ins. Co. v. Superior Court, 22 Cal.3d 362,378 (1978) (citing to Greyhound Corp. v.
Superior Court, 56 Cal.2d at 383-384) (shifting of discovery expenses lies within the sound
discretion of the trial court); see also Legal Voice v. Stormans Inc., 738 F.3d 1178, 1184 (9th Cir.
2013) (shifting costs of compliance with a subpoena if the costs are significant).
RESPONSE REGARDING HEARING PROCEDURES
Mr. Sperlein has further requested that the parties exchange witness lists prior to the
hearing. That request anticipates some cross-examination. Tesla would request that the Court
7
Mr. Hothi's extensive history trespassing at the Fremont factory bears directly on his
likelihood of doing so in the future.
AA702
Document received by the CA 1st District Court of Appeal.
Moreover, if discovery is allowed, Tesla should be permitted to serve reciprocal
discovery on Mr. Hothi. That discovery would include, at least, requests for: (1) all documents
(including emails, texts, photographs, and Twitter messages) evidencing, referencing, or
discussing his presence at the Fremont factory (including the parking lot) for the last twelve
7
months, including on February 21, 2019, (2) all documents discussing or evidencing his pursuit
of the Tesla vehicle on April 16, 2019, including photographs and video and communications on
Twitter and with those crowd-funding his defense.
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The Honorable Jeffrey S. Brand
June 3, 2019
Page 11
confirm wh.ether the Court will allow cross-examination as a preliminary matter. If so, Tesla
does not object to the request for the parties to exchange witness lists, but requests that the
exchange be made three court days prior to the hearing.
Finally, if discovery is allowed (which it should not be), Tesla reserves the right to ask
that the courtroom be closed for portions of the July 26 hearing, to the extent that sensitive, nonpublic Tesla information will be displayed or otherwise used. Tesla will raise that issue by
separate submission to the Court, if circumstances so require.
CONCLUSION
To the extent the Court allows any discovery (though it should not), that discovery must
be limited to (a) on the Tesla side, those portions of any videos of the February 21 and April 16
incidents depicting Mr. Hothi's threatening conduct; (b) reciprocal discovery from Mr. Hothi of
all documents, videos, and photographs (i) related to Mr. Hothi's presence at the Tesla Fremont
factory over the past year (including during the February 21 incident), and (ii) related to the
April 16 incident, as described further above. If so, such discovery should be accompanied by
the entry of an appropriate Protective Order.
Respectfully yours,
•
Zachary J. Alinder
cc:
D. Gill Sperlein
9963-314023620
AA703
Document received by the CA 1st District Court of Appeal.
For the foregoing reasons, Tesla respectfully requests that the Court deny Mr. Hothi's
request for discovery. There is no basis to deviate from the settled legal precedent that there is
no discovery in summary proceedings. The public policy ramifications of allowing discovery in
contravention of the law are significant. A minor delay in the hearing here due to the
unavailability of Respondent's counsel in June does not justify this discovery either.
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DECLARATION
OF
RANDEEP HOTHI
EXHIBIT 6
Document received by the CA 1st District Court of Appeal.
From: The Law Office of D GI Fax: 14154046616
CASE No. RG20069852
DECLARATION OF RANDEEP HOTH!- EXHIIllT 6
AA704
PDF Page 107
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To:
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Pagi111ii11ul 11i1ii11I 1111liiii1if1i111l1i 1i11i1l PM
21262583
FILED
2
ALAMEDA COUNTY
3
4
5
6
SUPERIOR COURT OF THE STATE OF CALIFORNIA
7
IN AND FOR THE COUNTY OF ALAMEDA
8
ESLA, et al,
10
Plaintiffs,
II
V,
No. RG19-015770
ORDER ON REQUESTS FOR DISCOVERY
12
OTHI, et al,
13
Defendants.
14
15
Petitioner Tesla and Respondent Hothi have filed letter briefs with the court on the issue
16
17
of whether pre-hearing discovery should be pennitted in this case. After consideration of the
18
letters, IT IS ORDERED: The requests for pre-hearing discovery are GRANTED IN PART and
19
DENIED IN PART. The motions for discovery are GRANTED to the extent they request the
20
production of photographic, audio, or video recordings of the alleged incidents on February 21
21
22
and April 6, 2019. Each party shall produce to the other any such evidence on or before Tuesday
July 16, which is 10 days of the hearing scheduled for Friday July 26, 2019. The motions are
23
otherwise DENIED.
24
Ill
25
26
AA705
Document received by the CA 1st District Court of Appeal.
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BACKGROUND
2
3
4
This case is an action under CCP 527.6 and CCP 527.8 for civil harassment action and
workplace harassment.
Petitioner Tesla alleges that respondent Randeep Hothi engaged in violence, threats of
5
violence or a course of conduct warranting the issuance of a permanent order. Tesla's petition is
6
based on two incidents: (1) an incident on February 21, 2019 in the parking lot of Tesla's
7
9
Fremont facility wherein respondent "hit Tesla's security employee ... with his car" and then
"fled the scene" in a "reckless manner" as he left the parking lot and (2) an incident on April 6,
10
2019 on public roads wherein respondent "stalked harassed and endangered" a Tesla Model 3
11
automobile engaged in autonomous driving testing.
12
On April 19,2019, Tesla filed the action. OnApril 19,2019,thecourtentereda
13
temporary restraining order and set a hearing for May 7, 2019. Hothi requested a continuance of
14
the hearing to permit time for discovery. The court granted the request and re-set the hearing to
15
May 21, 2019. On May 21, 2019, the court requested briefing on whether the court can permit
16
discovery and also continued the matter to July 26, 2019. The length of the continuance was to
17
18
19
accommodate counsels' schedules and was not to permit time for discovery.
Hothi's letter to the court dated May 23, 2019, states that Hothi seeks discovery,
20
including video, photographic and audio recordings, incident and investigation reports, "non-
21
privileged statements," correspondence, and police reports relating to both incidents. Hothi
22
makes 11 requests in all.
23
24
ORDER ON DISCOVERY
CCP section 527.6 does not provide for discovery in harassment cases, including actions
25
alleging workplace violence. Hothi' s letter brief of 5/23/19 at page 4 acknowledges "there is
26
2
AA706
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1
normally no opportunity for discovery" in summary proceedings seeking harassment-related
2
restraining orders. Tesla and Hothi both cite Thomas v. Quintero (2005) 126 Cal.App.4th 635,
3
650 fn 11, which states:
4
01/11/20211:13 PM
There is no provision under section 527.6 allowing for discovery, and in any case,
under the civil harassment scheme there is insufficient time in which to conduct
discovery. (See generally Byers v. Cathcart, supra, 57 Cal.App.4th at p. 811, 67
CaLRptr.2d 398; Diamond View Limited v. Herz, supra, 180 Cal.App.3d 612, 619620, fn. 8, 225 Cal.Rptr. 65 L) Section 527.6, subdivision (d) requires the trial court
to "receive any testimony that is relevant" at the hearing.
5
6
7
8
10
Byers v. Cathcart, 57 Cal.App.4 th at 811, states that CCP 527.6 "provides a quick and truncated
procedure." Diamond View Limited v. Herz (1986) 180 CaLAppJd 512, 519 fn 8, states,
11
"Section 527.6 is a special statute which significantly changed the ordinary procedures and
12
13
14
requirements in actions for injunctive relief by altering the provisions relating to pleading,
temporary restraining orders, undertakings, attorney's fees, discovery and trial."
The court holds as a matter of law that there is no right to discovery in petitions for
15
16
harassment under CCP 527.6 and 527.8, The law provides for a short and truncated procedure
17
and a quick resolution of the dispute. A right to discovery would run counter to the legislative
18
goals.
19
The dangers envisioned by the courts in Thomas, Byers, and Diamond View are evident in
20
this case. At the court's May 21 hearing, Hothi requested time to seek discovery, citing at that
21
time primarily video evidence that might be available to negate Tesla's claims. The court
22
23
invited letter briefs to outline the parties' positions with regard to their right to discovery in this
24
type of action. That invitation has now spawned 26 single-spaced pages of"letter briefs," along
25
with tens of pages of attachments, in support of and in opposition to Hothi's .broad-based
26
requests for discovery described above, which, in turn, have drawn predictable objections from
3
AA707
Document received by the CA 1st District Court of Appeal.
9
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Tesla and claims of confidentiality, privacy, burdensome, overbreadth and proprietary rights
2
along with requests for protective orders. It has also spawned requests by both parties for
3
reciprocal discovery should any discovery be allowed. Such a full-blown fight over discovery is
4
neither authorized nor intended by the statutory scheme in harassment restraining order actions.
5
The court holds as a matter of law that the court has the discretion to permit discovery in
6
8
petitions for harassment under CCP 527.6 and 527.8. The court may adopt "any suitable process
or mode of proceeding" ... "which may appear most conformable to the spirit of this code."
9
Although there is no right to discovery in harassment proceedings, the court may, on good cause
1o
shown and after considering the possibility of prejudice, order the parties to exchange discovery
11
before the hearing on the merits.
12
13
The court finds that limited discovery is appropriate on the facts of this case. The parties
must produce any photographic, audio, or video recordings of the alleged incidents on February
14
21 and April 6, 2019. Any such recordings would be directly relevant to the claims and defenses
15
in this case. Production of any such recordings would impose a minimal burden on the parties.
16
17
If any party were in possession of any such recordings and decided to not present them at trial,
18
then the court might be inclined to draw an adverse inference. (Evid Code 412; CACI 203.) If
19
any party produced recordings at the trial that were not previously available to the other party,
20
then due process concerns with notice might suggest that the court continue the trial to permit the
21 •
other party an adequate opportunity to respond. The court emphasizes that the grant of discovery
. 22
23
herein is limited and focused: Photographic, audio or video records of conduct that forms the
basis of Petitioner's request-the parking lot incident of February 21, 2019 and the driving-
24
related incident of April 6, 2019.
25
26
4
AA708
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In contrast, the court does not require the parties to produce incident and investigation
2
reports, witness statements, correspondence, and police reports relating to the incidents.
3
Although these are certainly relevant to the case, they are not directly relevant in the same way
4
that the recordings of the incidents are relevant. Although reports, statements, and
5
correspondence might be contemporaneous with the incidents, they are not real-time recordings
6
of the incidents. The reports, statements, and correspondence also might raise issues with
7
9
confidentiality and that the recordings to not present those issues. The court is cautious about
requiring discovery beyond the recordings of the incidents because it might lead to burden,
10
expense, and delay that is contrary to the quick and truncated procedure envisioned by the
11
statutory scheme.
12
13
14
CONCLUSION
The motion is GRANTED to the extent it requests the production of photographic, audio,
15
or video recordings of the alleged incidents on February 21 and April 6, 2019. Each party shall
16
produce to the other any such evidence on or before Tuesday July 16, which is 10 days of the
17
18
hearing scheduled for Friday July 26, 2019. The motion is otherwise DENIED.
19
20
Dated: July
I, 2019
21
22
23
24
25
26
5
AA709
Document received by the CA 1st District Court of Appeal.
8
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DECLARATION
OF
RANDEEP HOTHI
EXHIBIT 7
Document received by the CA 1st District Court of Appeal.
From: The Law Office of D GI Fax: 14154046616
CASE No. RG20069852
DECLARATION OF RANDEEP HOTH!- EXHIIllT 7
AA710
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2
01/11/20211:13 PM
FILED
ALAMEDA COUNTY
3
JUL l 11019~
4
.,.,ik~
5
6
SUPERIOR COURT OF THE STATE OF CALIFORNIA
7
IN AND FOR THE COUNTY OF ALAMEDA
8
'ESLA, et al,
10
Plaintiffs,
11
v,
No. RG19-015770
ORDER ON MOTION TO CLARIFY
ORDER OF 7/1/19 ON REQUESTS FOR
DISCOVERY
12
OTHI, et al,
13
Defendants,
14
15
16
17
BACKGROUND
On 7/1/19, the court entered an order on the requests for discovery. On 7/11/19, Tesla
18
filed a motion to clarify/reconsider, On 7/11/19, Hothi filed an opposition. On 7/12/19, the
19
parties filed a stipulation that the court could hear the motion on the papers,
20
The court's order re discovery of7/1/19 stated: "The motions for discovery are
21
GRANTED to the extent they request the production of photographic, audio, or video recordings
22
of the alleged incidents on February 21 and April 16, 2019. Each party shall produce to the other
23
any such evidence on or before Tuesday July 16, which is IO days prior to the hearing scheduled
24
for Friday July 26, 2019. The motions are otherwise DENIED."
25
26
AA711
Document received by the CA 1st District Court of Appeal.
9
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The court now clarifies that order, noting at the outset 2 principles that underlie the courts
2
3
4
5
initial order:
1. The court holds as a matter of law that there is no right to discovery in petitions
for harassment under CCP 527.6 and 527 .8, but that it has the discretion to order
discovery in the appropriate case.
6
2. The court's discovery order is limited and focused.
7
With these principles in mind, the court offers the following guidan.ce.
8
10
VIDEO RECORDINGS
11
The order of 7/1/ l 9 required the production of photographic, audio, or video recordings
12
of the alleged incidents on February 21 and April I 6, 2019. This includes only those video
13
recordings relevant to the conduct of respondent or the movement of his vehicle for either of the
14
incidents. If, as Hothi asserts, there were eight integrated cameras on the vehicle on April 16,
15
then the responsive recordings will include video relevant to the conduct of respondent or the
16
movement of his vehicle from any of the eight cameras. Prior to the hearing, the court will
17
review any video recordings in camera to confirm their relevance.
18
19
20
CELL PHONE PHOTOGRAPHY
21
The order of 7/1/19 includes recordings from official Tesla recording devices and also
22
includes recordings from any cellphone or personal re-cording devices. A recording prepared by
23
a Tesla employee in the course of the work day for work related purposes is a Tesla document
24
25
even if it is recorded on the employee's personal phone. By analogy, voicemails, e-mails, and
text messages relating to city business that are kept in personal phone, e-mail, or text message
26
2
AA712
Document received by the CA 1st District Court of Appeal.
9
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1
accounts can be public records under the Public Records Act. (City ofSan Jose v. Superior
2
Court (2017) 2 Cal.5 th 608.) The same limitation applies to the order herein as set forth for video
3
recordings: Cell phone photography re.Jevant to the conduct of respondent or the movement of
4
5
his vehicle for either of the incidents. Prior to the hearing, the court will review any cell phone
photography in camera to confirm their relevance.
6
7
9
THE AUDIO ON 4/16/19.
Tesla states it has 40 minutes of audio from the inside of the car on 4/16/19 from before,
10
during, and after the alleged incident with Hothi. Tesla asserts that th<1 audio contains
11
confidential business information. Based on these initial representations, the court cannot
12
conclude whether the audio recording is relevant.
13
14
15
Therefore, Tesla must produce the audio for the time frame 30 seconds before the
occupants were first aware that Hothi was following or that he was within approximately 50
meters of the vehicle until 30 seconds after IIothi was, for the last time, more than approximately
16
50 meters from the vehicle. This will limit the audio to the relevant time period. If Tesla
17
18
introduces evidence of what the occupants of the vehicle said, heard, or felt outside this time
19
frame, then the scope ofrelevance will expand accordingly. Prior to the hearing, the court will
20
review any audio recordings in camera to confirm their relevance.
21
If Tesla asserts that audio information during the relevant time period contains
22
confidential business information, then Tesla must make a more narrowly focused motion
23
supported by evidenee.
24
25
26
3
AA713
Document received by the CA 1st District Court of Appeal.
8
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PROTECTIVE ORDER.
2
The court ORDERS that both sides must keep the discovery information confidential and
3
may disclose it only ifit is presented to the court at the hearing on Tesla's petition for a
4
restraining order, Hothi stipulated lo this protective order. (Oppo at 5:2,4.)
5
The court does not address or decide whether any of the photographic, audio, or video
6
recordings of the alleged incidents on February 21 and April 16, 2019, will be sealed or
7
9
otherwise kept confidential if they are filed or submitted into evidence and a party files a motion
to seal under CRC 2.550.
to
A motion to seal under C.R.C. 2.550 is different from most motions because the
11
"opposition" is not really the opposing party, but the people of the State of Califomia and their
12
interest in an open and transparent judicial system. C.R,C. 2,550(c) states, "Unless
13
confidentiality is required by law, court records are presumed to be open." (See also NBC
14
Subsidiary (KNBC-TV), Inc, v. SuperiorCourt (1999) 20 Cal. 4th 1178, 1216-1217; In re
15
Marriage ofNicholas (2010) 186 Cal.App.4th 1566, 1575-1575.) In reviewing a motion to
16
seal, the court starts with the "strong presumption ... in favor of public aecess to court records in
17
18
ordinary civil trials." (In re Marriage qfNicholas, 186 Cal.App.4th at 1575.) The party seeking
19
to seal a doeument in a court file must overcome that "strong presumption" by presenting
20
declarations that contain fa.ct sutlicient to justify the sealing. (C.R.C. 2.551(b)(l).) Even in the
21
absence of any opposition evidence or argument, the Court has an obligation to review the
22
motion and seal only those documents that meet the requirements of C.R.C. 2.550( d).
23
24
Dated: July LÂ¥,"2019
25
26
4
AA714
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DECLARATION
OF
RANDEEP HOTHI
EXHIBIT 8
Document received by the CA 1st District Court of Appeal.
From: The Law Office of D GI Fax: 14154046616
CASE No. RG20069852
DECLARATION OF RANDEEP HOTH!- EXHIIllT 8
AA715
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Document received by the CA 1st District Court of Appeal.
From: The Law Office of D GI Fax: 14154046616
AA716
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DECLARATION
OF
RANDEEP HOTHI
EXHIBIT 9
Document received by the CA 1st District Court of Appeal.
From: The Law Office of D GI Fax: 14154046616
CASE No. RG20069852
DECLARATION OF RANDEEP HOTH!- EXHIIllT 9
AA717
PDF Page 120
To:
From: The Law Office of D GI Fax: 14154046616
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POS-030
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ALAMEDA COUNTY
R\,;'.~pGndcm R:imker) Ho1hi
COURT OF CALIFORNIA. COUNTY OF
Alameda
Anrndt>r Street
.sa·Rss"s practice nn11,,nfir1<1and pm,::essing correspondence for mailing. On
day that correspondence ·,s
placed lot collection and mailing, it is deposited in the ordir1ary course of busine,;sv.lh the United States Poslal Service in
a sealed envelope wi!h postage fully prepaid.
5, The envelope was addressed aod mailed as follows:
a. Name of person serve
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_____________ _____________________________
Casa Number:
RG'l901.5770
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Document received by the CA 1st District Court of Appeal.
9
name
AA719
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D...GlLL SF'ERLE!:-.!,
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ssr~ 172887
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OF !J. GE SPE;c:1.:::1,,1
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SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF ALAMEDA
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Tesla, :nc.,
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Attachment 3(b)( 4) fo Ch- i 15 Request
to Continue Hearing
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Randcep HothL
Respondent.
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Date: 5/7/2019
Time: l :30 pm
Courtroorn: 511
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AA720
Document received by the CA 1st District Court of Appeal.
Case No. RG19015770
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Mr. f-;othi is o d1izen joL,rnci!is' whose 1·eseorch 011d do1a nave Ievea:eo
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8 _lj Tesi·a ,s e>::i'rdvoganr cloirns about
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1"1 ol·;,ia:r,ing i1s ex porie 1ernporo1y rest,.aining order (wi"h on object fdiure io
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Selfm,Driving~· and o :•robo taxt -~ies'f.
give notice to Homi, dernite ktiOWing he could oe readily reacheci
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Twiiter), Tesla
'i,os poir1eti o 'urid piclure of Ho:hi as a dangerovs individual guiity of stolklng,
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narassmeni, and trespass, whose activ:;ies consiitute "'ocrual and threatened
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!i Mr. Hothi endangered no one. ihreak':red no one, and harassed no one.
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1 csla 1s accusations r1ere fall inlo o long and disturbing pattern of using lies
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18 and intimida+ion in on effori to silence iis critics. This matter plainly has ramific:atior1s
for t,eyond :rie ,nd:vidua! Respondent ond ti,erefore deserves a tong-form
l9
parties shoL'id hove the opportur,ity to toke d•sc:overy in odvc11,ce of the nearing.
22
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cause fo'r the: requested
Ho'fhi l~Jrovldes i'he fof!ov¥.i11q~ i'nforn1ation to establish aood
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2j : continuance, cilscovery, and long--form evidenliory hearing.
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_,,, l CaL2d 355, interpreting the Discovery ,A. ct cit. l .957)_
26 i d'scovery p1ovisiors in 1he Civil Discov,"ry Aci or
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·1986 (CCP 2016-2036) ond tl1e Civil
!L are i'C)- b~,~ i!'t.>eral!y consirued ;n
i'e!J1oc.1;-:s
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Ji D!scovei·y Act {CCP 2016.0 l 0-·2036:050),
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Document received by the CA 1st District Court of Appeal.
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PDF Page 124
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Page: 116 of 157
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To .\j'ndetsi·a11d Tesio's rno'five f'or using- !egoi process to disct·edh
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usual bounds--.of o re-strbfning o·rcJer, the _Couri' rnust undersi'ond what roie Hoi'h! plays.
hothi is on -ou)·spokE:n cfrfic of Tesla. He ·is on ocOdemlC· trained lr: field research c1~d
9
currently con1pleting a Ph.D. !n !in9uisfic oni'hroi:.)o'!o-gy, He has applied ol::iservo"fion
ana dota-gaihei-ing techniques :oarned in nis studies to uncovering informaflon
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about Tesio, especially information Tesla hos misrep;esen 1ed fo the pubiic. i..,e is poi-7
of ,he TSLAQ phenomenon which is a type of crowd sourcing of !nior:11ation relevant
14
15
to Tesla. [See Russ Mitchell, "T!,e crowd-sm,rced, socio! media swarm that is bett:ng
Tesia will crosti and burr.," LA Times (on line Apr. 12, 20"19, and atroched hereto as
II\
17
Exhibit A)).
l8
Directly relevant lo this mo1te,, Tesla 11,is rnonth n,ode extraordiriory claims
19
about 7he supposed "oulonor,ous drlving·• cc1pobi!ities of its vehicles. Teslc has
promised one rniilion · robo taxi,;" on ihe road by nexl year, c.cipabie of '' full 1eif·
21
drlv!ng.p {See .Russ t\f,itchell, ;·•in o -bind _ ~J\usk !-iopes autonon1ous Tes!a taxis. win dfr 1e
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PDF Page 125
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01/11/20211:13 PM
observe and briefly reCOi'd the car's oct;ons. Tl,i; iype of observc+io:, is essential 1o
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Petitioner's History of lying and Intimidation of Critics
To u11derstond the in,por:oi,ce of on evidentiaiy hearing and discovery, the
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critics, and oopreciote how Tesla's tactics alfect ihe puiJlic's right ro knov-1 ooout
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Tes:a as a publicly traded company.
First the deception. Tesla's most farnous fraud occurred !est August when
~es:a's CEO, Elcn Musk, iweeied 'o his
:n million Twitter fol!owers during tradii·ig hours
tha1 he hod ''funding secured" to rake Tesla private at a stock pr'ce well above !he
16
17
trading price. The siock price in,mediate,y and spec+ocuiorly soared. However,
18
Musk s claim was a lie. Ti,e SEC brougfit a 1Ob-5 aciion a gains: Musk that r0su:ted
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a $20 miliio:1 fine to Musk (end c $20 minion rine 1o Tesla for· failure to supervise Musk).
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{SGe Exhibff·C hereto), As part of 'the consent judgment, r/,vsk agreed 'iho'l r-1e· cari
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Tesla's cur1·sr1t clai,-ns obour aulonomous driving because Tes!a has o imck record
__ ::,
26
o; cieceiv;riQ ,:·e pvb!ic abovt 'ls rn-coiled ·'Fuli Sel:~Drivini;;t for
~so) caDob;li\ies. In
2016, Tesla r-nade Hre clalrns obout fhe imrrdnence O'f 'Its FSD ccpab!'.ii'ies ti;ot ore
AA723
Document received by the CA 1st District Court of Appeal.
6
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Block'' vioeo cf a car appea(ng to nov:gotc corr.plex 1·oods au,ono:,1ousiy. Lo1e1·
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l\i:Ade,rmeyer, "CA DMV Reporl Sl,eds l\!ew Ught on Misleading iesio ,<'.\u:ono:'t,ous
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In .en otternpt to- ei:Sure !ts h1dny C!i$-C€iptlors· remain undiscovered, Tesla ·hos
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fs what th0y me o;ternp1ing here, Respondent offers a few examples here, bu+ ;her·e
12
13
or!", countiess others.
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Whrm a 20,yem veteran photogmp!1er for the Reno Gazette Journal
tried +o phoiogmph :t·,e Tesla gigaiociory in Nevada. security guards ro,Jghed i,irn
16
up and claimed he hod tried to r;;n then1 over. (Reno Gazette Journal's ,owyer "sent
17
18
a let:er in resoonse [lo Tesla's doims] stot!ng 1t1e two guards rammed the Jeep and
19
s,·nosiled the window wi!h a rock be 1ore cvt1!ng [!he photographer] out o~ h•s seat
20 ,
· vv[i'h a-knife/ .c:rogging hlrn out of the v·ehicfe and shoving hirn to the ground."} {See
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charges clroopec1/ Reno Gozeffe Journal {on iine jon. 41 20181 and cJttoche!·d
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hereio as Exhibit F)).
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informed media ancJ reauio1ors
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tl1:reotenin9 danger ro possenq-ers ond th19. driving oubfic,. Tesfa CEO Niusk .se·t out to
AA724
Document received by the CA 1st District Court of Appeal.
gone to exlroord:nory effo(s lo inti,nida1e 1hose who seek 1o report ,he iru1r1, wi1,c!\
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When a ferna'le engineer a!lege-d se,xual' hara.ssrnent at Tes'lo, T"esia
4.
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fired r1er. (See, San; Levin, j'Teslo· fire.s fernale engineer who aireged sexual
14
I:ne June L 2018. attached hereto as Exhibit JI),
harassment'' LA Times Ion
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Good Cause
16
Bc1sed on the above facts, there exis1s good cause to order a iong-form
17
l 8 ovi::ientiary hearing with sufficlenl +ime in o::ivance to conduct discovery for :he
following reasons:
J9
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The negative in1pact on iI11s R_e-spondent is far greater than in the
typical restro.inltlg ordei· actior. The sirnple o.ct o,f fiEr1·g of the pefit1on outed (or
12
doxxed) f~espo!7dent. A nL1-:-•i.)er of Tesla rcmat:cs have e-maiied Respondent's
23
24 , clean, departrneni choir. 011d thesis advisor commanding ihot ihe university expel
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T11e inflamma+ory accusations n,ode by Tesla in ihis
from
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. his Ph.J. oroorom.
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jj hign,,•proff.!e prOC6'•2dinQ are certain· to hov.e o orofound effecl on ResrJondenf·s
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AA725
Document received by the CA 1st District Court of Appeal.
j()
PDF Page 128
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From: The Law Office of D GI Fax: 14154046616
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Page: 120 of 157
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1p._t:1,
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and investors wi,o rely on ci'.izen journalists ar'.d investigo :ors
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uncover theJ iru'h
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8
1r,i,rn:dc1ies
those who ,eek io thv,ari its eiimis
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corning to light, and
deprive the pubiic oi importani
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of her methods, the 11:;•ss likely people v-lili be wiiiing 1o put 1!,eir necl
PDF Page 129
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,or ;ne raasons sei ror:n ooov0, e;esponoen, reques1 mm 1ne C oun:.
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parHes i',o iakc discovery pr'!Oi to the hc·aring: and
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2) sc;1edule.a !ong-'forrn evicten+iary hearing on the- Petii'iorr.
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Respectfully Subrn!Hed,
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-8AA727
Document received by the CA 1st District Court of Appeal.
..
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01/11/20211:13 PM
DECLARATION
OF
RANDEEP HOTHI
EXHIBIT
10
Document received by the CA 1st District Court of Appeal.
From: The Law Office of D GI Fax: 14154046616
CASE No. RG20069852
I0
DECLARATION OF RANDEEP HOTH! - EXHIIllT
AA728
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RE: Tesla, Inc. v Randeep Hothi
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You replied on Tue 5/14/2019 10:05 AM
Alinder, Zachary J.
Fri 5/10/2019 5:43 PM
6
')
We have reviewed the Court's order continuing the hearing at your client's request, as well as your
May 2nd letter and requested discovery, As an initial matter, the Court noted in its order that "ll]his
case is a summary proceeding and there is normally no opportunity for discovery," Consistent with
the Court's order. we do not believe discovery is appropriate in this case, and we arc not aware of any
basis under the law for your discovery requests. Indeed, the only relevant authorities that we have
found con/inn that there is no discovery in ,uch summary procc,.,ding,, See, e,1;,, Tlwmas v.
Quintero, 126 CaL App, 4th 635,650 (2005). If yon can provide any legal authority lo support
discovery requests in this context, however, we would be happy to consider ii. We are also happy to
discuss further at the hearing currently scheduled for May 21 ' t ,
Sincerely yours,
Zac
From: Gill Sperlein [mailto:gill@sperleinlaw.com]
Sent: Wednesday, May 8, 2019 4:54 PM
To: Alinder, Zachary J.
Cc: Liu, Ellen P,
Subject: [EXTERNAL] RE: Tesla, Inc. v Randeep Hothi
Zac
please feel free to call me Gill. Nice to meet you Ellen,
Thank you for the information below,
Although I doubt this will come into play here, I am notifying all opposition counsel in my current
litigation cases that i will he unavailahle for appearances for most of June and a few days in July, A
formal nc,tice is ,mached.
Gill
0, GILL Si'ERLEIN
~;~i .Q'rOV~ '.Sh£J~i,?t
sari tror.ci;cc,, cti 94102
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Document received by the CA 1st District Court of Appeal.
Dear Gill:
U'rom: Alinder, Zachary J,
I of l
AA729
l/7/21, 8:48 PM
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DECLARATION
OF
RANDEEP HOTHI
EXHIBIT 11
Document received by the CA 1st District Court of Appeal.
From: The Law Office of D GI Fax: 14154046616
CASE No. RG20069852
11
DECLARATION OF RANDEEP HOTH! - EXHIIllT
AA730
PDF Page 133
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Page 125 of 15~11 01/11/20211:13 PM
22186954.
1 ZACHARY J. ALINDER (State Bar No. 209009)
E-Mail:
zalinder@;ideman.com
2 ELLEN P. LIU (State Bar No. 280459)
E-Mail:
eliu@sideman.com
. 3 SIDEMAN & BANCROFT LLP
One Embarcadero Center, Twenty-Second Floor
4 San Francisco, California 94111-3 711
Telephone: (415) 392-1960
5 Facsimile:
(415) 392-0827.
FILED
ALAMEDA COUNTY
MAY 21 2019
~s~
6 Attorneys for Petitioner
TESLA,INC.
7
8
9
SUPERIOR COURT OF THE S_T ATE OF CALIFORNIA
10
COUNTY OF ALAMEDA
11 TESLA, INC.,
13
Petitioner,
v.
14 RANDEEP HOTHI,
15
Respondent.
16
17
-
18
({)
19
20.
21
22
23
24
25
REPLY MEMORANDUM IN SUPPORT
OF RESTRAINING ORDER RE
RANDEEP HOTHI
Date: May 21, 2019
Time: 1:30 p.m.
Dept.: 511
Document received by the CA 1st District Court of Appeal.
12
Case No. RG19015770
26
27
28
AA731 1
Case No. RG 19015770
REPLY MEMORANDUM IN SUPPORT OF RESTRAINING ORDER
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1
2
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INTRODUCTION
The Response filed by Respondent Randeep Hothi ("Mr. Hothi" or "Respondent") on May
3 17, 2019 further confirms that the Court should convert the temporary restraining order ("tRO")
4 issued on April 19, 2019 into a more permanent restraining order. The Response does not, and
5 cannot, justify Mr. Hothi's dangerous and threatening conduct, nor does it explain why Mr. Hothi
6 continued making threats even after the Court issued the TRO against him:
7
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Mr. Hothi cannot dispute that he has trespassed at the Tesla factory numerous times, struck
2 a Tesla employee with his car at the factory, or that he pursued a car full of Tesla employees for
3 35 minutes on the highway. He has also evaded efforts by the Fremont police to serve him with a
4 no-trespass warning for the Tesla factory, and has refused to .stipulate to a stay-away order from
5 the two Tesla facilities in question. Mr. Hothi's messaging, including the image in his tweet,.
6 speak for themselves. In short, Mr. Hothi is dangerous and "will not rest" unless restrained.
7
The Court should reject Mr. Hothi's arguments for at least four reasons.
8
First, Mr. Hothi shows no contrition for putting innocent people in a dangerous and
9 frightening situation. Mr. Hothi admits that he is an avid Tesla short seller with financial and ·
10 reputational reasons to want to make Tesla and its products fail. His behavior since the TRO
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11 confirms his intent to continue, or even escalate, the same threatening and malicious behavior.
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1 account-knew this well.
2
. Fourth, Mr. Hothi's claims to being a "journalisr' are not well taken. The First
3 Amendment is no justification for using your car to endanger and intimidate people, and it does
4 not protect Mr. Hothi here:
5
In summary, Mr. Hothi's Response further confirms the need to restrain him. Tesla
6 requests that the TRO now be extended for the maximum 3-year period allowed in this
7 proceeding, modified only to remove Mr. Temmerman, who is no longer employed at Tesla.
8
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A.
ARGUMENT
Mr. Hothi's Lack of Contrition Establishes a Reasonable Probability that His
Wrongful Acts Will Be Repeated in the Future
I); or
Having put three Tesla employees in fear of their safety and having clipped another with
11
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1 trespassing in the act. He also does not dispute that he has trespassed at the factory numerous
2 times, in violation of posted signs, and even planted video cameras on Tesla:s private property.
3 See generally Response; see also Supplemental Declaration of Christine Leslie in Support
4 ("Supplemental Deel."), filed concurrently with this Reply, ,3 & Ex. A. Tesla has every reason to
5 believe Mr. Hothi will return, endangering any Tesla employee who then confronts him.
As to the April 2019 incident, Mr. Hothi concedes that he followed the Tesla vehicle from
6
7 Fremont to Treasure Island, going through the bridge toll plaza, and even exiting on Treasure
8 Island to follow the Tesla crew fleeing him. See Hothi Deel. at, 8. Mr. Hothi further admits that,
9 while driving on a public highway, he recorded the car's actions using his cellphone, id., and he
10 does not credibly deny making reckless maneuvers in following the Tesla car, see Declarations of
12 Order. In the process, he endangered Tesla's employees and the public and committed multiple
. 13 violations of California law. See CVC § 23123.5 (prohibiting the holding of a cell phone while
14 driving); CVC § 4008(a) (prohibiting reckless driving "with the intent to capture any type of
15 visual image, sound recording, or other physical impression of another person for a commercial
16 purpose.").· And most importantly, Mr. Hothi cannot deny that his harassing pursuit made Tesla's
17 employees fear for their safety, despite having no prior knowledge of Mr. Hothi. See April 19 .
Ul
18 Tesla Declarations in Support of Petition.
This incident is part of a pattern of increasingly escalating dangerous conduct by Mr.
19
20 Hothi. As shown in his Twitter feed, Mr. Hothi has routinely staked out the Tesla employee and
21 contractor parking lots since the fall of 2018. See Alinder Deel.,, s & Ex. A. 1 Mr. Hothi's .
22 conduct has only escalated from there, with Mr. Hothi planting portable cameras on Tesla private
23 property in late 2018 (which he does not deny), and then clipping a uniformed Tesla security
24 officer with his car while exiting the Tesla employee parking lot in February 20 I9. See April 19
25
26
1
Document received by the CA 1st District Court of Appeal.
11 Cross, McDonald, and Temmerman in Support of Petition for Workplace Violence Restraining
As set forth in more detail in the separately filed Request for Judicial Notice, Tesla requests that
27 the Court judicially notice these tweets and related public website postings, set forth in the Alinder
Declaration, filed concurrently with this Reply.
28
AA736
6
Case No. RGl90!5770
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1 Leslie Declaration, pp. 1-3; see also April 19 James Declaration in Support of Petition at p. 1.
2 Then, his conduct went even further over the line as. he trailed and recorded a Tesla vehicle for
3 over a half hour in April, putting them in serious fear. See Cross, Temmerman, and McDonald
4 Declarations in Support of Petition. Court intervention is needed before Mr. Hothi causes even
5 graver harm.
Finally, whether Mr. Hothi intentionally or knowingly communicated verbal threats is
6
7 irrelevant. See Response to Petition, Attachment 11 at p. 10:4-16.; see City ofSan Jose v. Garbett,
8 supra, 190 Cal. App. 4th at 538, 118 (subjective intent not required for conduct to be deemed a
9 credible threat; whether threat is conveyed by conduct or pure speech is irrelevant).· Using his car
10 to intimidate or endanger people is more than sufficient, and Mr. Hothi needs to be restrained from
12
C.
13
Mr. Hothi's Response also demonstrates that he is willing to lie to avoid entry of an
Mr. Hothi Has Misled Both the Police and the Court
14 injunction. 2 As to the incident where he clipped a Tesla employee with his car, Mr. Hothi initially
15 told police that he had parked in a random parking lot intending to take a nap, even though he
16 lived just a few minutes away. Hothi Deel., Ex. A, 2/27/19 Report at p. 3. In his May 17th
17 Response, Mr. Hothi tells a completely new story, swearing under oath that he was onsite to visit
-
18 the Tesla showroom, which is adjacent to the factory. Hothi Deel. at, 4 But that also is not
(J)
19 credible. When he was confronted by Tesla sec~ity personnel, Mr. Hothi was parked near the
20 northern edge of the employee parking lot, approximately 0.3 miles away from the showroom and
21 its designated customer parking spots. See Supplemental Deel.,, 3 & E)(. A. Mr. Hothi does not
'
22 deny having trespassed at the factory on numerous prior occasions, and his tweets show that he
23 knew exactly where the employee parking lots are. See Alinder Deel:,, 5 & Ex. A. And by this
24
25
2
Mr. Hothi's hearsay objection (see Response to Petition at 6: 12-13) should be overrruled. See
26 Kaiser Found. Hosps. v. Wilson, 201 Cal. App. 4th 550,557, 133 Cal. Rptr. 3d 830,835 (2011)
("The plain language of this provision suggests that the Legislature intended to permit a trial court
27 to consider all relevant evidence, including hearsay evidence, when deciding whether to issue an
injunction to prevent workplace violence pursuant to section 527.8.").
28
AA737
7
Document received by the CA 1st District Court of Appeal.
11 continuing this behavior or escalating it further.
Case No. RG19015770
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1 time, Tesla had installed "No Trespassing" signs at all publicly-accessible parking lot entrances
2 and on all perimeter fences around the Fremont factory. See Supplemental Deel., 13.
3
Mr. Hothi' s Response thus shows that he is not credible and is willing to mislead the Court
4 to avoid a court order forbidding him from trespassing at Tesla's facilities.
5
D.
There Is a High Likelihood of Irreparable Harm
6
There is a high likelihood of substantial and irreparable harm if Mr. Hothi is not
7 permanently restrained. Mr. Hothi has now threatened the safety of both the public and Tesla's
8 employees, in the pursuit of either his own personal financial gain and/or notoriety as a Tesla short
9 seller. That is sufficient by itself to extend the injunction.
10
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11 just as dangerous in the future ifhe is not restrained. Indeed, Mr. Hothi's April 20th tweet-after
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15 to reach that goal. See Alinder Deel., 14. Mr. Hothi's past conduct and threats of future conduct,
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18 ·illegal conduct. As described above, Mr. Hothi has misled the police and now the Court in an
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Further, Mr. Hothi has made clear in every way possible that he intends to continue his
19 effort to hide his true reasons for trespassing at thefactory at the time of the February 2019
20 incident. In addition, as detailed in the police report, Mr. Hothi actively avoided efforts by the
21 Fremont police to serve him with a trespass warning notice, refusing to meet and stating he was
22 "out of the area." Hothi Deel., Ex. A, 4/10/19 Supplement No. 2 to Police Report at p. 1. That
23 behavior is not consistent with a person whose actions were unintentional. It also is not consistent
24 with someone who intends to comply with the Fremont police's warning notice.
25
Prior to this hearing, Tesla also requested through counsel that Mr. Hothi stipulate to a
Document received by the CA 1st District Court of Appeal.
a.
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26 permanent stay away order from the Tesla facilities at issue here. Mr. Hothi refused, further ·
27 confirming that he intends to continue his course of conduct to endanger and threaten Tesla's
28 employees. See Alinder Deel., 17.
AA738 _8
Case No. RGI 90 l 5770
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1
E.
2
While Mr. Hothi calls himself as a "journalist," rather than a Tesla short seller, that
The First Amendment ls Not a License to Break the Law
3 distinction is irrelevant to the questions here. Mr. Hothi has endangered people through this .
4 conduct. Even if Mr. Hothi were a journalist, "[t]he First Amendment has never been construed to
5 accord newsmen immunity from torts or crimes committed during the course of newsgathering.
6 The First Amendment is not a license to trespass, to steal, or to intrude by electronic means into
7 the precincts of another's home or office." Dietemann v. Time, Inc., 449 F.2d 245,249 (9th Cir.
8 1971); see also Raefv. Appellate Div. ofSuperior Court, 240 Cal. App. 4th 1112, 1123, 193 Cal.
9 11ptr. 3d 159, 166 (2015) ("The First Amendment does not immunize the press from 'the
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10 enforcement of civil or criminal statutes of general applicability."') .
11
Further, the proposed restraining order does not limit Mr. Hothi's freedom of speech in any
12 way. The restraining order requires him to stay away from two Tesla facilities, where the
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13 threatened employees and other Tesla employees are present. Th~t does not impinge on his right
14 to free speech, but rather prevents him from further endangering Tesla's employees, whether
OfDO
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SIDEMAN & BANCROFT LLP
2
3
By:
ach~fAlinder
Attorneys for Petitioner
TESLA,INC.
.
4
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Case No. RG19015770
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DECLARATION
OF
RANDEEP HOTHI
EXHIBIT
12
Document received by the CA 1st District Court of Appeal.
From: The Law Office of D GI Fax: 14154046616
CASE No. RG20069852
12
DECLARATION OF RANDEEP HOTH! - EXHIIllT
AA741
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&I
1611 TELEGRAPH AVENUE
SUITE 806
OAKLAND, CALJFOR:-l!A 94612
'" 415.217.3700
"" 510,759.3848
rnarth;:i@hoersd1-illovsky.com
bo~rnch . illovsky ,com
July 19, 2019
Re: Tesla, lnc. v. Randeep Hothi
Case No. RG19015770
Dear Judge Brand:
We are in receipt of the Court's July 18, 2019 Order (the "Order"). TI1at Order clarifies
that the Court's July 1 discovery order requires Tesla to produce both video and audio
recordings related to two incidents involving Respondent Hothi's conduct on February
21 and April 16, 2019.
Tesla very much appreciates the Court's consideration of its motion. It respectfully
disagrees, however, with the Court's order requiting production of the audio recording,
particularly where other evidence amply demonstrates Hothi's conduct. While Tesla is
confident that the evidence supports the claims made in this case, Tesla has endeavored
to make clear that the audio recording contains its employees' private and personal
conversations. As described in Tesla's briefing, those conversations include personal
information and private discussions that these individuals never intended for public
consumption. Tesla's employees have already been subjected to both the conduct
described in Tesla's petition and the unwanted publicity and online harassment that
followed the filing of that petition. Production of their private conversations to Mr.
Hothi would, in Tesla's view, inflict more damage by subjecting them to an unwarranted
invasion of their privacy and further harassment. And once the audio is produced, as
the Court's Order itself suggests, little doubt remains that it will make its way into the
public domain, publicly exposing every detail of an informal conversation among
coworkers who did nothing wrong.
Tesla had hoped not to have to choose in this instance between protecting its employees'
safety and exposing them to an invasion of their privacy. The Company's necessary
course of action is now clear after the Court's Order. While Tesla believes that a
AA742
Document received by the CA 1st District Court of Appeal.
Honorable Jeffrey S. Brand
Alameda County Superior Court
Hayward Hall of Justice
Department 511
24405 Amador Street
Hayward, CA 94544
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Hon. Jeffrey Brand
July 19, 2019
Page2
restraining order against Mr. Hothi is necessary and appropriate to protect its
employees at their workplace, Tesla will redouble its efforts to protect its employees
through other means. Tesla believes it has given Mr. Hothi clear notice not to enter its
property and that Tesla will take appropriate action in the future to protect its
employees.
Tesla hereby withdraws the petition and will file the appropriate papers with the Clerk
of the Court.
Respectfully submitted,
cc: D. Gill Sperlein, Esq. (counsel for Respondent)
AA743
Document received by the CA 1st District Court of Appeal.
~
Martha Boersch
Eugene Illovsky
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DECLARATION
OF
RANDEEP HOTHI
EXHIBIT
13
Document received by the CA 1st District Court of Appeal.
From: The Law Office of D GI Fax: 14154046616
CASE No. RG20069852
13
DECLARATION OF RANDEEP HOTH! - EXHIIllT
AA744
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I BOERSCH & ILLOVSKY LLP
Martha Boersch (State Bar No. I26569)
2 martha@boersch-iHovsky.com
Eugene lllovsky (State Bar No. 117892)
3
euge11e@boersch-illovsky.com
4 16 l l Telegraph Ave., Ste. 806
Oakland, CA 94612
5 Telephone: (415) 500-6640
6 Attorneys for Petitioner
7 Tesla, Inc.
8
SUPERIOR COURT OF THE STATE OF CALIFORNIA
9
COUNTY OF ALAMEDA
lO
Case No. RG190!5770
TESLA, INC.,
12
13
14
15
MOTION FOR CLARIFICATION OR
PARTIAL RECONSIDERATION OF JULY
1 DISCOVERY ORDER AND FOR
PROTECTIVE ORDER; DECLARATION
OF EUGENE ILLOVSKY; [PROPOSED]
PROTECTIVE ORDER
Petitioner,
v.
RANDEEP HOTHI,
Respondent
16
17
18
19
20
21
22
23
24
25
26
27
28
PETITIONER'S MOTION
FOR PROTECTIVE ORDER
Case No.: RG19015770
AA745
Document received by the CA 1st District Court of Appeal.
11
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Petitioner Tesl~ Inc. ("Tesla") hereby moves the Court for clarification or partial
2 reconsideration of its July I, 2019 Order 011 Request for Discovery (the "Discovery Order") regarding
3 the production of any interior audio recording accompanying the video recording of the April 16,
4 20 l 9 incident. Tesla also moves for a protective order restricting Respondent Hothi from
5 disseminating, filing, or otherwise disclosing any audio, photo, or video recordings produced by
6 Tesla in discovery, until further order of the Court.
grounds
this motion are set forth below
7 and in the Declaration of Eugene Illovsky filed concurrently with this motion.
8
SUMMARY OF ARGUMENT
9
Tesla respectfully disagrees with the Discovery Order, but requests clarification and/or
IO reconsideration of one narrow aspect of that order. The Court granted discovery of audio,
12 confidentiality concerns. However, that is emphatically not true of the audio recording made on the
13 interior of the vehicle during the April 20!9 drive, which records verbatim some 40 minutes of
14 private conversation among three Tesla employees spanning a variety of personal, private, sensitive,
15 business-confidential, and other irrelevant topics. Tesla does not consider this audio to
a
16 "recording[] of!he incidents," orto depict the conduct that forms the basis of Tesla's petition, and
17 asks the Court to clarify that this material need not be produced.
18
First, the audio recording raises issues with confidentiality. Tesla's employees have already
19 been harassed online by followers of Mr. Hothi, which has resulted in stress and other consequences.
20 Tesla's employees should not be subject to a further invasion of their privacy and potential
21 harassment that would result from the public disclosure of their private conversations. In addition,
22 many aspects of the audio contain information that Tesla deems confidential and proprietary. This
23 information does not belong in the proceeding, and certainly does not belong in the hands of Mr.
24 Hothi.
25
Second, the "incident" that Tesla complains of are discrete instances ofHothi's conduct
26 "driving ahead
beside, and behind [three Tesla employees] and swerving dangerously close to the
27 vehicle." Petition for Workplace Violence Restraining Order at 2. The videos sufficiently
28
2
AA746
PETITIONER'S MOTION
FOR PROTECTIVE ORDER
Case No.: RGl9015770
Document received by the CA 1st District Court of Appeal.
11 photographic and video evidence based 011 its assumption that such materials would not raise
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demonstrate these episodes without the need to provide 40 minutes of Tesla employees' private,
2 confidential, and irrelevant conversations. Again, this audio should not be produced.
3
As to the evidence the Court has ordered Tesla to produce, Tesla requests that the Court enter
4 a strict protective order preserving the confidentiality of any recordings. Such a protective order is
5 necessary to prevent any potential farther harassment of those employees by the community of
6 virulently anti-Tesla short-sellers that tweets under the hashtag $TSLAQ. Without such a protective
7 order, Tesla is certain that its recordings will appear on line and unfairly expose its employees who
8 appear in the recordings to abusive public attacks on Twitter or in other press (or worse).
9 Furthermore, the Court should not reward Hothi with unrestricted access to, and the ability to
IO disseminate to his followers, the footage ofthe very test drive that he broke the law to obtain.
12 Court does not rule on this motion before
compliance date of July 16, 2019.
FACTUAL BACKGROUND
13
14
A. The Discovery Order
15
On July l, 2019, this Court issued its Discovery Order in which it correctly held that "there is
16 no right to discovery" in these proceedings, but that it "has the discretion to permit discovery."
17 (Discovery Order, p. 4). The Court granted in part and denied in part "the requests for prehearing
18 discovery," 1 but only in so for as "they request the production of photographic, audio, or video
19 recordings ofthe alleged incidents on February 21 and April 6, 2019."2
20
Tesla had objected to Mr. Hothi's broad discovery requests and specifically objected to the
21 demand for the audio/video recordings 011 grounds that it called for "confidential/proprietary/private
22 information." Tesla further requested that any discovery allowed be protected by an order forbidding
23 the use of any material outside of the July 26 hearing and restricting the materials to attorney's eyes
24 only. Letter Brief at IO (June 3, 20 ! 9). The Discovery Order does not appear to address Tesla's need
25 for an appropriate order protecting any audio or video discovery it may produce. 3
_ _ _ _ _ _ _ M_.,.._.....,._
26
1
The Discovery Order was served on the parties by mail on July 3, 2019.
27 3 Tesla believes the Court intended to refer to the date of April 16, 2019 and not April 6.
The Discovery Order held that the motions were "otherwise DENIED" (Discovery Order, p.l), but
28 Tesla does not believe the Court was denying request a protective order. If the Court did deny
3
PETITIONER'S MOTION
FOR PROTECTIVE ORDER
Case No.: RG 19015770
2
AA747
Document received by the CA 1st District Court of Appeal.
Tesla also asks the Court to partially stay the effect of its Discovery Order, in the event the
ll
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Because the Discovery Order is unclear whether the Court considered and rejected Tesla's
2 objections to the production ofirrelevant portions of the video and audio and/or its request for a
3 protective order, Tesla submits this request for clarification or reconsideration of the order.
4
B. Tile Audio and Video Recordings
5
Tesla has certain audio and video recordings pertinent to the February 21, 2019 parking lot
6 event and the event of April 16, 20 l 9, during which Mr. Hothi followed a Tesla test car with three of
7 its employees while taking his own photos and videos. There are two short videos of Mr. James' (of
8 Tesla Security) encounter with Mr. Hothi
the Tesla parking lot 011 February 21, 2019. Both videos
9 include audio. There are also two videos, with audio, from the exterior mounted cameras depicting
l 0 the full 40-minute drive during which Mr. Hothi followed the Tesla car on Interstate 880 on April 16,
12 drive 011 April 16. Unlike the other audio at issue, this audio discloses the identities of, private
13 conversations of, and personal details about Tesla employees as well as the confidential business
14 information of Tesla regarding its technology and vehicle, among other things. This audio raises
15 serious privacy and confidentiality concerns, and should not be produced.
16
C. Online Attacks
17
After this lawsuit was initiated, various people on Twitter (apparently part ofthe anti-Tesla
18 short seller community) publicly identified (or in the new terminology, "doxed'1 Tesla employees
19 who had submitted testimony in support of Tesla's petition. The comments ranged from calling out
20 personal information about the employees, posting pictures ofthem, or falsely calling them liars.
21 See, e.g., Exhibit A to the Declaration of Eugene Illovsky, Al (Tesla employee's maiden name and
22 prior work history); A2 (saying Tesla employee's statement is "perjury"); A3 (identifying Tesla
23 employee by photo). Absent a protective order from the Court, Tesla expects that the production of
24 evidence pursuant to the Court's order will only exacerbate these personal attacks.
Ill
Ill
that request, Tesla would ask that the Court reconsider that ruling for the reasons set forth in this
28 motion.
PETITIONER'S MOTION
4
FOR PROTECTIVE ORDER
Case No.: RG190l5770
AA748
Document received by the CA 1st District Court of Appeal.
1l 2019. Finally, there is one video from an interior camera that depicts, from the car's interior, the full
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ARGUMENT
2
A. The Court Order Should be Clarified to Apply Only to Those Portions of the Audio
1111d Video That Actually Depict Hothi's Offending Conduct
3
The audio of the April 16 incident documents private and personal conversations, discloses
4 Tesla's confidential and prnprietary business information, and contains other irrelevant matter. These
5 private conversations were never intended to be made public, and were clearly not what the Court had
6 in mind when it ordered production of materials it assumed would not raise confidentiality issues.
7 Moreover, the accompanying video evidence-together with Mr. Hothi's own voluminous evidence
8 of the evems--ts more than sufficient to demonstrate the conduct of which Tesla complains.
9
Furthermore, disclosure of those conversations will undoubtedly subject these employees to
l O an unwarranted invasion of privacy and further harassment on the internet, victimizing them even
show in in the lllovsky declaration, this has already
12 occurred on Twitter as a result of Tesla's initial application. Disclosure of these employees' private
13 conversations would only add fodder for the internet twitter mill, subjecting Tesla's employees to
l 4 further harassment and prejudice.
15
Finally, allowing Hothi access to such confidential information in these proceedings would
16 defeat, or at least substantially weaken, the very purpose of the statute to provide the petitioner with a
17 "quick and truncated procedure." Order on Discovery at 3 (citing cases). Given that discovery
18 normally is not allowed in these proceedings, and that Tesla's employees have already been subjected
19 to harassment on the internet, Tesla should not be ordered to produce the audio ftom the vehicle's
20 interior, which documents personal, private, sensitive, and business-confidential conversations of its
21 employees.
22
B. The Court Should Enter a Protective Order
23
Tesla is concerned that the public release or display of any audio and video recordings will
24 disclose its confidential business information and subject its employees to further "unwarranted
25 annoyance, embarrassment, [and] oppression." CCP 2031.060. Tesla therefore asks for a protective
26 order that: 1) restricts Mr. Hothi's use of the recordings to (he hearing on July 26; 2) prevents Mr.
27 Hoihi from copying and disseminating the recordings; 3) prohibits the public filing or display of the
28
5
AA749
PETITIONER'S MOTION
FOR PROTECTIVE ORDER
Case No.: RGl9015770
Document received by the CA 1st District Court of Appeal.
l l further. That concern is not hypothetical.
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recordings (they will be produced to the Court for in camera review); and 4) prevents the public
2 playing of the recordings in Court without further Court order.
3
The Court, of course, has the authority to enter an appropriate protective order. Ibarra v.
4 Superior Court (2013) 217 Cal. App. 4th 695, 706 ("A trial court has the authority to supervise
5 discovery in the interests of justice"). While the parties did not engage in formal discovery (given the
6 fact that discovery is not normally allowed in these proceedings), it is within this Court's authority
7 "in the interests of justice and judicial economy" to consider Tesla's request for a protective order
8 regarding the discovery ordered produced. Id. ("In the interests of justice and judicial economy we
9 will treat [plaintiff's] motion for disclosure as a demand for inspection and deem Petitioner's
IO opposition to such motion as a motion for a protective order").
There are ample gmunds for a protective order here. While Tesla believes no discovery
12 should be allowed in these proceedings, certainly this Court should not allow discovery that will
13 reward Mr. Hothi with the very Tesla-confidential information that motivated his offending conduct
14 and then allow the public dissemination of that information, The Court should enter the requested
15 protective order to protect Tesla's non-public, business confidential information. See, e.g., Fed. R.
16 Civ. P. 26(c) (1)(0).
17
Moreover, there is every reason to believe that Mr. Hothi or his anti-Tesla supporters will
18 disseminate the evidence that Tesla may produce in this action and use it to harass Tesla's employees.
19 That is what they do on Twitter. Mr, Hothi himself has posted innumerable photos of Tesla-related
20 topics on Twitter, and has gone to great lengths to obtain that content-resorting to trespassing,
21 planting portable cameras on Tesla property, and tailing Tesla's employees on the freeway.
22 Additionally, after Tesla initiated this action, Mr. Hothi's followers began to harass Tesla's
23 employees on the internet. See Declaration of Eugene Illovsky. Protecting potential witnesses from
24 "unwarranted annoyance, embarrassment, [and] oppression" and preserving their privacy by issuing
25 the requested protective order is well within this Court's discretionary authority.
26 Ill
27 Ill
28
6
PETITIONER'S MOTION
FOR PROTECTIVE ORDER
Case No.: RG19015770
AA750
Document received by the CA 1st District Court of Appeal.
Jl
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CONCLUSION
2
Tesla respectfully requests that the Court clarify its Discovery order to provide that it does not
3 apply to the interior audio recording consisting of Tesla employees' private conversations, and that it
4 issue the requested protective order to prevent Mr. Hothi from disseminating in any way to any third
5 person any evidence produced by Tesla pursuant to the Discovery Order (including filing such
6 materials under seal if used in any motion or other papers in this action) and prohibiting the public
7 playing of the materials until further order of the Court.
8
Dated: July IO, 20 l 9
Respectfully submitted,
9
& ILLOVSKY LLP
IO
Document received by the CA 1st District Court of Appeal.
II
12
13
Tesla, Inc.
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
7
AA751
PETITIONER'S MOTION
FOR PROTECTIVE ORDER
Case No.: RGl9015770
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DECLARATION
OF
RANDEEP HOTHI
EXHIBIT
14
Document received by the CA 1st District Court of Appeal.
From: The Law Office of D GI Fax: 14154046616
CASE No. RG20069852
14
DECLARATION OF RANDEEP HOTH! - EXHIIllT
AA752
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2
3
4
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D. GILL SPERLEIN, SBN 172887
THE LAW OFFICE OF D. GILL SPERLEIN
345 Grove Street
San Francisco, CA 94114
Telephone: (415) 404-6615
Facsimile: (415) 404-6616
gill@sperleinlaw.com
5
6
Attorneys for Respondent
7
SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF ALAMEDA
8
9
10
Tesla, Inc.,
12
Petitioner,
13
14
15
16
17
18
v.
Randeep Hothi,
RESPONDENT'S OPPOSITION TO
MOTION FOR CLARIFICATION OR
PARTIAL RECONSIDERATION OF
JULY 1 DISCOVERY ORDER AND FOR
PROTECTIVE ORDER
Scheduled Hearing
Respondent.
Date: 7/26/2019
Time: 1:30 pm
Courtroom: 511
19
20
21
22
Document received by the CA 1st District Court of Appeal.
Case No. RG 19015770
11
Respondent Randeep Hothi responds as follows to Tesla, lnc.'s Motion for
23
Clarification or Partial Reconsideration of July l Discovery Order and for Protective
24
Order (the "Motion"). Tesla asks this Court to excuse it from producing some 40
25
26
minutes of audio recording, seeks a protective order as to recordings it does
produce, and asks the Court to partially stay its July 1ST discovery order in the event it
27
28
AA753-1-
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does not rule on the Motion in advance of the July 16 production deadline. For the
reasons hereafter set forth, Hothi opposes the Motion.
I.
4
Where Are the Other Eight Video Recordings?
As a threshold matter, as to the April 16 incident involving the Model 3, Tesla
5
6
7
confirms it has three video recordings with audio: two recordings from exterior
mounted cameras and a third from a camera inside the car. (Motion at 4)
8
9
Plainly, the Court's July l order to produce "any photographic, audio, or
video recordings of the alleged incidents on February 21 and April 6, 2019" includes
10
12
13
this Court should expect as well, that Tesla will produce all the video from the eight
integrated cameras.
14
15
Tesla has repeatedly boosted that the video from those cameras is recorded
and then analyzed by Tesla in developing its autonomous driving capabilities. Even
16
17
Document received by the CA 1st District Court of Appeal.
recordings mode by the Model 3's eight integrated cameras. Hothi expects, and
11
if such material was not routinely archived, in this case - where the purpose that day
18
was to demonstrate the autopilot features - those recordings would certainly hove
19
been preserved. Tesla's TRO application alleged Hothi twice "swerved close enough
20
to trigger the Model 3's side-collision avoidance feature." (Declaration of Mott Cross
21
22
at 1) The Model 3's side cameras presumably will show exactly what the "swerves"
23
looked like and how close Hothi's car come. It will also demonstrate how those
24
alleged swerves compare to the maneuvers of other traffic surrounding the vehicle.
25
26
II.
Where Is the Cell Phone Photography?
27
28
AA754-2-
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Tesla's TRO application also included a photo of Hothi's car that appears to
1
2 have been taken from a cell phone camera, presumably by one of the Model 3's
3 occupants ("the crew was able to take a photo of the car"), (Declaration of
4
Christine Leslie at 4) Any such cell phone recordings would be comprehended by
5
6
the Court's order that the parties produce "any photographic, audio, or video
7 recordings of the alleged incidents on February 21 and April 6, 2019."
8
9
Ill.
The Audio Recording Inside the Car Is Highly Relevant
Tesla's action is for "unlawful violence or a credible threat of violence" at the
10
workplace under Cal. Code Civ. Pro. §527.8. Here, there is no allegation of actual
12
Document received by the CA 1st District Court of Appeal.
11
violence during the April 16 event. To show a "credible threat of violence," Tesla
13
must show "o knowing and willful statement or course of conduct that would place
14
o reasonable person in fear for his or her safety ... and that serves no legitimate
15
purpose," (Col. Code Civ. Pro. §527.8(b)(2)) Putting aside for the moment the
16
17
crucial fact that Hothi's activities did serve a legitimate purpose, the mental state of
18
the car's occupants is obviously relevant to the question of whether they were in
19
fear for their safety. No single piece of evidence con bear more directly on this
20
question than what the car occupants said during the 40 or so minutes of the
21
22
encounter.
23
Also relevant is whether and when the car's occupants communicated with
24
anyone at Tesla about Hothi's activities. As is clear from the TRO application and
25
police reports, Tesla had known about Hothi, and targeted him, since the Spring of
26
2018. (Petition, Leslie Deel. at l).
27
28
AA755-3-
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Tesla expresses concern that the audio recording may include "confidential
2 business information" about Tesla's technology or private details about the lives of
3 the car's occupants, yet offers no evidence to substantiate those concerns. Hothi is
4
willing to have Tesla furnish Hothi with a list of the portions of the audio recording
5
6
that it wants protected. If the parties cannot agree on protection of those portions,
7 then the Court can take the matter up in advance of or at the start of the July 26
8 hearing.
9
Tesla also attempts to create a moral equivalence between Tesla's and the
10
12
Document received by the CA 1st District Court of Appeal.
CEO's doxing and targeting of critics on the one hand, and comments made by
11
critics of Tesla on the other. (Motion at 4; Declaration of Eugene Illovsky at Exhibit A)
13
This is patent nonsense. No Tesla employees were doxed; the Tesla employees
14
mentioned in the Twitter postings already had established their identities by filing
15
sworn statements accompanying the TRO application. And, as is obvious from a
16
17
review of the Twitter comments, many were directed at the obvious conflicts
18
between the sworn testimony of the Tesla employees and the police reports of the
19
February 21, 2019 parking lot incident that later came to light.
20
Moreover, Tesla's Petition and the Court's Order granting the TRO against
21
22
Hothi was distributed on the Internet before it was available through the Court's
23
website, demonstrating that Tesla showed no concern about the privacy of its
24
employees when the objective was to discredit Hothi. Their concern at this point
25
simply does not ring true.
26
27
28
AA756-4-
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2
IV.
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Tesla's Request for Protective Order
Hothi stipulates to Tesla's request for a protective order to the extent Tesla
3 seeks to prohibit the use of discovery materials for any purpose beyond the hearing
4
on Tesla's petition for restraining order. However, any material that is presented as
5
7
8
9
10
relevant evidence at the hearing cannot be excluded from the public. Four
decades ago, the California Court of Appeal recognized that:
[i]f public court business is conducted in private, it becomes impossible
to expose corruption, incompetence, inefficiency, prejudice, and
favoritism. For this reason traditional Anglo-American jurisprudence
distrusts secrecy in judicial proceedings and favors a policy of maximum
public access to proceedings and records of judicial tribunals
11
12
(Estate of Hearst (1977) 67 Col. App.3d 777,784)
Document received by the CA 1st District Court of Appeal.
6
13
In the years since, courts hove confirmed time and again that the First
14
Amendment to the United States Constitution, the California Constitution, and the
15
California Rules of Court require public access to judicial records in all but the rarest
16
17
of circumstances. To protect the public's Constitutional right of access, the
18
California Rules of Court provide that a court may not seal a record without holding
19
a hearing and issuing on order that "expressly finds facts that establish: (1) There
20
exists an overriding interest that overcomes the right of public access to the record;
21
22
(2) The overriding interest supports sealing the record; (3) A substantial probability
23
exists that the overriding interest will be prejudiced if the record is not sealed; (4 )
24
The proposed sealing is narrowly tailored; and (5) No less restrictive means exist to
25
achieve the overriding interest." C.R.C. 2.550(d).
26
Where Tesla has perhaps cleverly, but nonetheless disingenuously attempted
27
28
to use a petition for workplace violence restraining order to silence a critic against
AA757-5-
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whom it has had a long standing vendetta, the public has a critical interest in seeing
2
the evidence it relies upon in support of its petition or the evidence respondent relies
3
upon to oppose it.
4
V.
CONCLUSION
5
6
7
For the reasons set forth herein, Respondent Hothi respectfully requests that
this Court deny Tesla's Motion.
8
11
12
13
14
15
16
Date: July 11, 2019
D. Gill Sperlein
THE LAW OFFICE OF
D. GILL SPERLEIN
Attorneys for Respondent
17
18
19
20
21
22
23
24
25
26
27
28
AA758-6-
Document received by the CA 1st District Court of Appeal.
9 Respectfully Submitted,
10
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DECLARATION
OF
RANDEEP HOTHI
EXHIBIT
15
Document received by the CA 1st District Court of Appeal.
From: The Law Office of D GI Fax: 14154046616
CASE No. RG20069852
DECLARATION OF RANDEEP HOTH! - EXHIIllT 15
AA759
PDF Page 162
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Superior Court of California, County of Alameda
Hayward Hall of Justice
Tesla, Inc.
No. RG190l5770
Plaintiff/Petitioner( s)
vs.
Minutes
Hothi
Dcfcndant/Rcspondcnt(s)
Abbreviated Title)
Honorable Jeffrey Brand
Department 511
, Judge
Cause called for trial: July 26, 2019.
Petitioner Matt Cross not appearing.
Petitioner Tesla. Inc. not appearing.
Respondent Randeep Hothi not appearing.
Minutes of
Entered on
Document received by the CA 1st District Court of Appeal.
Dismissal entered on this date. The court drops this hearing.
07/26/2019
07/26/2019
_J+
Chad Finke Executive Officer/ Clerk of the Superior Court
Bv
.x!Jcilf
Deputy Clerk
Minutes
AA760
Ml3149423
PDF Page 163
To:
From: The Law Office of D GI Fax: 14154046616
ATTORNEY OR PARTY WITHOUT ATTORNEY:
STATE BAR NO:
D. Gill Sperlein
FIRM NAME The Law Office of D. Gill Sperlein
STREET ADDRESS: 345 Grove Street, , CA 94102
cITY San Francisco
TELEPHONE NO
415-404-6615 X1Q3
E-MAIL ADDRESS: gill@sperleinlaw.com
ATTORNEY FOR (oome) Plaintiff Randeep Hothi
Fax: (510) 267-1547
Page: 155 of 157
FILED BY FAX,.v
172887
POS-040
ALAMEDA COUNTY
NAME
January 12, 2021
STATE
FAX NO.:
ZIPCODE 94102
CA
415-404-6616
CLERK OF
THE SUPERIOR COURT
By Shabra lyamu, Deputy
CASE NUMBER
RG20069852
SUPERIOR COURT OF CALIFORNIA, COUNTY OF ALAMEDA
STREET ADDRESS
01/11/20211:13 PM
24405 Amador Street
MAILING ADDRESS:
cITY AND zip coor
BRANCH NAME
Hayward, CA 94544
Hayward Hall of Justice
CASE NUMBER
Plaintiff/Petitioner: Randeep Hothi
RG20069852
Defendant/Respondent: Elon Musk
JUDICIAL OFFICER.
PROOF OF SERVICE-CIVIL
Check method of service (only one):
By Personal Service
By Mail
D
By Messenger Service
D
By Fax
Julia Spain
By Overnight Delivery
[X] By e-mail per agreement
DEPARTMENT·
520
1. At the time of service I was over 18 years of age and not a party to this action.
2. My residence or business address is:
345 Grove Street, San Francisco, CA 94102
3.
The fax number from which I served the documents is (complete if service was by fax):
4. On (date): January 11, 2021
I served the following documents (specify):
The documents are listed in the Attachment to Proof of Service-Civil (Documents Served) (form POS-040(D)).
5. I served the documents on the person or persons below, as follows:
a. Name of person served: Alex Spiro, Michael T. Lifrak, Jeanine M. Zalduendo, and Aubrey Jones
b.
(Complete if service was by personal service, mail, overnight delivery, or messenger service.)
Business or residential address where person was served:
Service by email per agreement to alexspiro@quinnemanuel.com, michaellifrak@quinnemanuel.com,
c.
(Complete if service was by fax.)
jeaninezalduendo@quinnemanuel.com and aubreyjones@quinnemanuel.com
Fax number where person was served:
The names, addresses, and other applicable information about persons served is on the Attachment to Proof of ServiceCivil (Persons Served) (form POS-040(P)i
6. The documents were served by the following means (specify):
a.
By personal service. I personally delivered the documents to the persons at the addresses listed in item 5. (1) For a
party represented by an attorney, delivery was made (a) to the attorney personally; or (b) by leaving the documents at the
attorney's office, in an envelope or package clearly labeled to identify the attorney being served, with a receptionist or an
individual in charge of the office; or (c) if there was no person in the office with whom the notice or papers could be left, by
leaving them in a conspicuous place in the office between the hours of nine in the morning and five in the evening. (2) For
a party, delivery was made to the party or by leaving the documents at the party's residence with some person not
younger than 18 years of age between the hours of eight in the morning and eight in the evening.
Document received by the CA 1st District Court of Appeal.
Do not use this form to show service of a summons and complaint or for electronic service.
See USE OF THIS FORM on page 3.
Page 1 of3
Form Approved for Optional Use
Judicial Council of California
POS--040 [Rev, January 1, 2020]
PROOF OF SERVICE-CIVIL
(Proof of Service)
AA761
Code of Civil Prooedure, §§ 1011, 1013, 1013a,
2015.5: Cal. Rules of Court, rule 2.306
www.courts.ca.gov
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POS-040
CASE NAME:
CASE NUMBER
Hothi v, Musk
RG20069852
By United States mail. I enclosed the documents in a sealed envelope or package addressed to the persons at the
addresses in item 5 and (specify one):
6, b,
(1)
deposited the sealed envelope with the United States Postal Service, with the postage fully prepaid.
(2)
placed the envelope for collection and mailing, following our ordinary business practices. I am readily familiar with this
business's practice for collecting and processing cerrespondence for mailing. On the same day that correspondence
is placed for collection and mailing, it is deposited in the ordinary course of business with the United States Postal
Service, in a sealed envelope with postage fully prepaid.
I am a resident or employed in the county where the mailing occurred. The envelope or package was placed in the mail at
(city and state):
c.
By overnight delivery. I enclosed the documents in an envelope or package provided by an overnight delivery carrier
and addressed to the persons at the addresses in item 5. I placed the envelope or package for collection and overnight
delivery at an office or a regularly utilized drop box of the overnight delivery carrier.
d.
By messenger service. I served the documents by placing them in an envelope or package addressed to the persons at
the addresses listed in item 5 and providing them to a professional messenger service for service. (A declaration by the
messenger must accompany this Proof of Service or be contained in the Declaration of Messenger below.)
D
By fax transmission. Based on an agreement of the parties to accept service by fax transmission, I faxed the documents
to the persons at the fax numbers listed in item 5. No error was reported by the fax machine that I used. A copy of the
record of the fax transmission, which I printed out, is attached.
I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct.
Date:
January 11, 2021
D. Gill Sperlein
(TYPE OR PRINT NAMC
or DECLARANT)
(SIGNATURE OF OECLARANT)
(If ,tem 6d above is checked, the declaration below must be completed or a separate declaration from a messenger must be attached.)
DECLARATION OF MESSENGER
By personal service. I personally delivered the envelope or package received from the declarant above to the persons at the
addresses listed in item 5. (1) For a party represented by an attorney, delivery was made (a) to the attorney personally; or (b) by
leaving the documents at the attorney's office, in an envelope or package clearly labeled to identify the attorney being served,
with a receptionist or an individual in charge of the office; or (c) if there was no person in the office with whom the notice or
papers could be left, by leaving them in a conspicuous place in the office between the hours of nine in the morning and five in the
evening. (2) For a party, delivery was made to the party or by leaving the documents at the party's residence with some person
not younger than 18 years of age between the hours of eight in the morning and eight in the evening.
At the time of service, I was over 18 years of age. I am not a party to the above-referenced legal proceeding.
I served the envelope or package, as stated above, on (date):
I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct.
Date:
(NAME Of DECLARANT}
POS...Q40 [Rev. January 1, 2020]
Document received by the CA 1st District Court of Appeal.
e.
(SIGNATURE OF DECLARANT)
PROOF OF SERVICE-CIVIL
(Proof of Service)
AA762
Page2of3
PDF Page 165
From: The Law Office of D GI Fax: 14154046616
To:
Fax: (510) 267-1547
Page: 157 of 157
01/11/20211:13 PM
POS-0401D
CASE NUMBER:
SHORT TITLE:
Hothi V. Musk
RG20069852
ATTACHMENT TO PROOF OF SERVICE-CIVIL (DOCUMENTS SERVED)
(This Attachment is for use with form POS-040)
The documents that were served are as follows (describe each document specifically):
PLAINTIFF RANDEEP HOTH I'S OBJECTIONS TO DEFENDANT'S EVIDENCE SUBMITTED IN SUPPORT OF
DEFENDANT'S SPECIAL MOTION TO STRIKE
PLAINTIFF RANDEEP HOTHl'S MEMORANDUM IN OPPOSITION
TO PLAINTIFF ELON MUSK'S SPECIAL MOTION TO STRIKE
Document received by the CA 1st District Court of Appeal.
DECLARATION OF RANDEEP HOTHI IN SUPPORT OF HIS OPPOSITION TO DEFENDANT'S SPECIAL
MOTION TO STRIKE
Fo,m Appro,ect toe Optional U,e
Judioial Council of California
POS-040(0) [New Januafy 1, 2005]
ATTACHMENT TO PROOF OF SERVICE-CIVIL (DOCUMENTS SERVED)
(Proof of Service)
AA763
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