Hothi v. Musk Document 24

California Court of Appeals
Case No. A162400
Filed August 2, 2021

Respondent's brief.

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Page 1 Court of Appeal, First Appellate District
Court of Appeal, First Appellate District
Charles D. Johnson, Clerk/Executive Officer
Charles D. Johnson, Clerk/Executive Officer
Electronically RECEIVED on 8/2/2021 at 10:25:24 AM
Electronically FILED on 8/2/2021 by T. Nevils, Deputy Clerk
In the
Court of Appeal
of the
State of California
FIRST APPELLATE DISTRICT
DIVISION ONE
ARANDEEP HOTHI,
Plaintiff-Respondent,
v.
ELON MUSK,
Defendant-Appellant.
_______________________________________
APPEAL FROM THE SUPERIOR COURT OF ALAMEDA COUNTY
HONORABLE JULIA SPAIN ∙ NO. RG
RESPONDENT’S BRIEF
LAWRENCE J. FOSSI, ESQ. (Admitted Pro Hac Vice)
ATTORNEY AT LAW
25 Hawthorne Lane
Bozeman, Montana (713) 854-4027 Telephone
lawrence.fossi@outlook.com
DENNIS G. SPERLEIN, ESQ. (172887)
THE LAW OFFICE OF D. GILL SPERLEIN
345 Grove Street
San Francisco, California (415) 404-6615 Telephone
gill@sperleinlaw.com
MICHAEL F. SMITH, ESQ. (Admitted Pro Hac Vice)
THE SMITH APPELLATE LAW FIRM
1717 Pennsylvania Avenue NW, Suite Washington, D.C. (202) 454-2860 Telephone
smith@smithpllc.com
Attorneys for Respondent Randeep Hothi
COUNSEL PRESS ∙ (800) 3-APPEAL
PRINTED ON RECYCLED PAPER
Page 2 .
/s/ Dennis G. Sperlein
Page 3 TABLE OF CONTENTS
CERTIFICATE OF INTERESTED ENTITIES OR PERSONS .................. TABLE OF CONTENTS .............................................................................. TABLE OF AUTHORITIES......................................................................... INTRODUCTION .................................................................................... STATEMENT OF FACTS .......................................................................... STANDARD OF REVIEW......................................................................... ARGUMENT .............................................................................................. I.
THIS COURT MAY DISREGARD VARIOUS
LEGAL ARGUMENTS AND FACTUAL
ASSERTIONS MUSK IMPROPERLY PRESENTS ...........
II.
MUSK’S DEFAMATORY SPEECH WAS NOT
MADE IN CONNECTION WITH A PUBLIC ISSUE ........
III.
A.
Musk’s Accusations Did Not Address any Issue
of Public Interest ........................................................
B.
Musk’s Accusations Bear No ‘Functional
Relationship’ to any Issue of Public Interest. ............
C.
Musk’s Defamatory Statements Were Not
About an Issue Pending Before a Court. ....................
THE TRIAL COURT CORRECTLY HELD THAT
HOTHI HAS A PROBABILITY OF PREVAILING
ON THE MERITS ................................................................. A.
B.
Musk’s Claims that Hothi “Harassed” Tesla
Employees, “Sideswiped” One, and “Almost
Killed” Multiple “Tesla Employees” Are
Neither True nor Protected as Opinions ..................... 1.
The ‘Harassment’ Accusation .........................
2.
The ‘Sideswipe’ Accusation ...........................
3.
The ‘Almost Killed’ Accusation .....................
Musk’s Argument that ‘Almost Killed’
Referred to the Parking Lot Incident, not the
Roadway Incident Is Implausible ...............................
Page 4 IV.
V.
VI.
C.
Musk’s Plea for an Alternative Definition of
‘Harassment’ Is Unsupported in the Law and, in
All Events, Unhelpful to Him ....................................
D.
Musk’s ‘Sideswipe’ and ‘Almost Killed’
Statements Were Not Opinion but Contained
Provably False Assertions of Fact ..............................
HOTHI IS NOT A LIMITED-PURPOSE PUBLIC
FIGURE BECAUSE MUSK’S STATEMENTS ARE
NOT CONNECTED TO MUSK’S PARTICIPATION
IN PUBLIC DISCOURSE .................................................... A.
Musk’s Accusations Do Not Concern Tesla’s
Claims About its Manufacturing and
Technology .................................................................
B.
Musk’s Accusations Do Not Concern Tesla’s
Treatment of its Critics...............................................
C.
Musk’s Accusations Do Not Concern the
Supposed $TSLAQ ‘Conspiracy’ Against Tesla .......
D.
Musk Applies the Wrong Standard Regarding
Limited Purpose Public Figures .................................
E.
Musk’s Defamatory Statements Are Not
Germane to Any Public Debate into Which
Hothi Inserted Himself ...............................................
F.
Classifying Hothi as a Limited Public Figure
Would Be Inconsistent with the Doctrine’s
Rationale ....................................................................
THE TRIAL COURT CORRECTLY RULED THERE
IS A TRIABLE ISSUE OF FACT AS TO WHETHER
HOTHI CAN DEMONSTRATE MALICE .......................... A.
Hothi Is Not Required to Establish Malice to
Overcome Musk’s Anti-SLAPP Motion ....................
B.
The Superior Court Did Not Apply the Wrong
Standard for ‘Malice.’ ................................................
MUSK IS NOT ENTITLED TO APPELLATE FEES,
AND HOTHI IS ....................................................................
CONCLUSION ........................................................................................... CERTIFICATE OF COMPLIANCE .......................................................... DECLARATION OF SERVICE
Page 5 TABLE OF AUTHORITIES
CASES
Ampex Corp. v. Cargle,
(2005) 128 Cal.App.4th 1569 ........................................................... Annette F. v. Sharon S.,
(2004) 119 Cal.App.4th 1146 ............................................... 31, 44, Barker v. Garza,
(2013) 218 Cal.App.4th 1449 ..................................................... 22, Barnes-Hind, Inc. v. Superior Court,
(1986) 181 Cal.App.3d 377 .............................................................. Behr v. Redmond,
(2011) 193 Cal.App.4th 517 ............................................................. Bently Reserve L.P. v. Papaliolios,
(2013) 218 Cal.App.4th 418 ....................................................... 39, Blue Ridge Bank v. Veribanc, Inc.,
(4th Cir. 1989) 866 F.2d 681 ............................................................ Briggs v. Eden Council for Hope & Opportunity,
(1999) 19 Cal.4th 1106 ..................................................................... Canaday v. Peoples-Perry,
(N.D. Cal. Dec. 15, 2017, No. 17-cv-05602-JSC)
2017 U.S. Dist. LEXIS 206804 ........................................................ Christian Research Inst. v. Alnor,
(2007) 148 Cal.App.4th 71 ................................................... 49, 50, Church of Scientology v. Wollersheim,
(1996) 42 Cal.App.4th 628 ............................................................... City of Alhambra v. D’Ausilio,
(2011) 193 Cal.App.4th 1301 ........................................................... City of Arcadia v. State Water Resources Control Bd.,
(2010) 191 Cal.App.4th 156 ............................................................. Clardy v. Cowles Publishing,
(1996) 81 Wn.App. 53 ......................................................................
Page 6 Commonwealth Energy Corp. v. Investor Data Exchange, Inc.,
(2003) 110 Cal.App.4th 26 ......................................................... 24, Computer Xpress v. Jackson,
(2001) 93 Cal.App.4th 993 ............................................................... Consumer Justice Center v. Trimedica International, Inc.,
(2003) 107 Cal.App.4th 595 ............................................................. Copp v. Paxton,
(1996) 45 Cal.App.4th 829 ............................................................... Cty. of Sacramento v. Rawat,
(2021) 280 Cal.Rptr. 267.................................................................. Dixon v. Superior Court (Scientific Resource Surveys, Inc.),
(1994) 30 Cal.App.4th 733 ............................................................... Du Charme v. IBEW,
(2003) 110 Cal.App.4th 107 ....................................................... 27, Dyer v. Childress,
(2007) 147 Cal.App.4th 1273 ..................................................... 27, Evans v. Centerstone Dev. Co.,
(2005) 134 Cal.App.4th 151 ............................................................. Ferris v. Larry Flynt Publ’g, Inc.,
(D.Haw. Apr. 13, 2001, Case: Civil No. 99-00662HG-LEK)
2001 U.S. Dist. LEXIS 7759 ............................................................ FilmOn.com Inc. v. DoubleVerify Inc.,
(2019) 7 Cal.5th 133 .................................................................. passim
Gertz v. Robert Welch, Inc.,
(1974) 418 U.S. 323 ......................................................................... Grenier v. Taylor,
(2015) 234 Cal.App.4th 471 .......................................... 25, 30, 41, Hailstone v. Martinez,
(2008) 169 Cal.App.4th 728 ........................................... 25, 26, 27, Herbert v. Lando,
(1979) 441 U.S. 153 ......................................................................... Hewlett-Packard Co. v. Oracle Corp.,
(2015) 239 Cal.App.4th 1174 ..................................................... 11,
Page 7 Hicks v. KNTV Television, Inc.,
(2008) 160 Cal.App.4th 994 ....................................................... 52, Hoang v. Tran,
(2021) 60 Cal.App.5th 513 ............................................................... Huntington Beach City Council v. Superior Court,
(2002) 94 Cal.App.4th 1417 ............................................................. Jackson v. Paramount Pictures Corp.,
(1998) 68 Cal.App.4th 10 ................................................................. Jankovic v. Int'l Crisis Grp.,
(2016) 422 U.S.App.D.C. 259 .......................................................... Laker v. Bd. of Trs. of Cal. State Univ.,
(2019) 32 Cal.App.5th 74 ................................................................. Makaeff v. Trump Univ., LLC,
(9th Cir. 2013) 715 F.3d 254 ............................................................ McGarry v. Univ. of San Diego,
(2007) 154 Cal.App.4th 97 ............................................................... McGlothlin v. Hennelly,
(D.S.C. Apr. 15, 2020, No. 9:18-cv-00246-DCN)
2020 U.S. Dist. LEXIS 66288 .......................................................... Milkovich v. Lorain Journal Co.,
(1990) 497 U.S. 1 ............................................................................. Mindys Cosmetics Inc. v. Dakar,
(9th Cir. 2010) 611 F.3d 590 ............................................................ Moriarty v. Laramar Management Corp,.
(2014) 224 Cal.App.4th 125 ............................................................. Murray v. Tran,
(2020) 55 Cal.App.5th 10 ..................................................... 26, 28, Navallier v. Sletten,
(2002) 29 Cal.4th 82 ................................................................... 33, Neville v. Chudacoff,
(2008) 106 Cal.App.4th 1255 ........................................................... Overstock.com v. Gradient Analytics, Inc.,
(2007) 151 Cal.App.4th 688 .............................................................
Page 8 People ex rel. Lockyer v. Brar,
(2004) 115 Cal.App.4th 1315 ........................................................... People v. Bell,
(2019) 7 Cal.5th 70 ........................................................................... People v. Bipialaka,
(2019) 34 Cal.App.5th 455 ............................................................... People v. Castro,
(1985) 38 Cal.3d 301 ........................................................................ People v. Terry,
(1974) 38 Cal.App.3d 432 ................................................................ Powell v. Kleinman,
(2007) 151 Cal.App.4th 112 ............................................................. Pub. Employees’ Ret. Sys. v. Moody’s Invs. Serv., Inc.,
(2014) 226 Cal.App.4th 643 ............................................................. Reader's Digest Assn. v. Superior Court,
(1984) 37 Cal.3d 244 ................................................ 47, 48, 49, 51, Regency Outdoor Advertising, Inc. v. Carolina Lanes, Inc.,
(1995) 31 Cal.App.4th 1323 ............................................................. Rivero v. American Federation of State, County and
Municipal Employees, AFL-CIO,
(2003) 105 Cal.App.4th 913 ............................................................. Roberts v. Lomanto,
(2003) 112 Cal.App.4th 1553 ........................................................... Rosenaur v. Scherer,
(2001) 88 Cal.App.4th 260 ......................................................... 37, Ruiz v. Harbor View Cmty. Ass’n,
(2006) 134 Cal.App.4th 1456 ........................................................... Ruiz v. Moss Bros. Auto Grp.,
(2014) 232 Cal.App.4th 836 ............................................................. Siam v. Kizilbash,
(2005) 130 Cal.App.4th 1563 ..................................................... 17, Solano v. Playgirl, Inc.,
(9th Cir. 2002) 292 F.3d 1078 ..........................................................
Page 9 Stolz v. KSFM 102 FM,
(1994) 30 Cal.App.4th 195 ............................................................... Summerfield v. Randolph,
(2011) 201 Cal.App.4th 127 ............................................................. Summit Bank v. Rogers,
(2012) 206 Cal.App.4th 669 ............................................................. Tesla, Inc. v. Randeep Hothi,
(April 19, 2019) Alameda County Superior Court,
RG19015770 .................................................................................... Time, Inc. v. Firestone,
(1976) 424 U.S. 448 ......................................................................... Unsworth v. Musk,
(C.D. Cal. Nov. 18, 2019, No. 2:18-cv-08048-SVW-JC)
2019 U.S. Dist. LEXIS 229076 ...................................... 46, 47, 51, Waldbaum v. Fairchild Publications,
(1980) 627 F.3d 1287 ..................................................... 42, 43, 44, Walker v. Kiousis,
(2001) 93 Cal.App.4th 1432 ............................................................. Weller v. ABC,
(1991) 232 Cal.App.3d 991 .............................................................. Wilcox v. Superior Court,
(1994) 27 Cal.App.4th 809 ............................................................... Wilson v. CNN,
(2019) 7 Cal.5th 871 ......................................................................... Wolston v. Reader's Digest Ass’n,
(1979) 443 U.S. 157 ......................................................................... Wong v. Jing,
(2010) 189 Cal.App.4th 1354 ........................................................... World Financial Group, Inc. v. HBW Ins. & Financial Services, Inc.,
(2009) 172 Cal.App.4th 1561 .......................................................... Yang v. Tenet Healthcare, Inc.,
(2020) 48 Cal.App.5th 939 ...............................................................
Page 10 Young v. CBS Broadcasting, Inc.,
(2012) 212 Cal.App.4th 551 ............................................................. COURT RULES
California Rules of Court, rule 8.204(a)(1)(B)............................................ California Rules of Court, rule 8.204(a)(2)(C)............................................ Federal Rules of Evidence 608 .................................................................... STATUTES
Civil Procedure Code § 425.16 ....................................................... 20, 21, Civil Procedure Code § 425.16(e)(2) .............................................. 30, 31, Civil Procedure Code § 425.16(e)(4) ................................................... passim
Civil Procedure Code § 527.6 ..................................................................... Civil Procedure Code § 527.8 ............................................................... 15, Evidence Code § 788 ................................................................................... Penal Code § 245(a)(1) ................................................................................ Penal Code § 646.9 .......................................................................... 33, 34, Vehicle Code § 23103(a) ............................................................................. OTHER AUTHORITIES
50 Am.Jur.2d, Libel and Slander § 455 (1970) ........................................... California Evidence Code - Federal Rules of Evidence: V.
Witnesses: Conforming the California Evidence Code to the
Federal Rules of Evidence, 39 U.S.F. L. Rev. 455 ..........................
Page 11 INTRODUCTION
For a self-styled “disruptor,” Defendant-Appellant Elon Musk
(“Musk”) drags this Court down a tiresome path it has seen all too often:
Another appeal in an anti–SLAPP case. Another appeal by a
defendant whose anti–SLAPP motion failed below. Another
appeal that, assuming it has no merit, will result in an
inordinate delay of the plaintiff's case and cause him to incur
more unnecessary attorney fees. And no merit it has. (HewlettPackard Co. v. Oracle Corp. (2015) 239 Cal. App. 4th 1174,
1186, quoting Moriarty v. Laramar Management Corp. (2014)
224 Cal.App.4th 125, 133, cleaned up.)
On April 19, 2019, Tesla, Inc. (“Tesla”), a company largely owned
and wholly controlled by Musk, its CEO, obtained an ex parte TRO against
Plaintiff-Respondent Randeep Hothi (“Hothi”), a Tesla critic who had
exposed the company’s various lies about its manufacturing capability. Tesla
sought the TRO four days before its vaunted “Autonomy Day” event (which
took place on April 23, 2019, and at which Musk would promise 1,000,fully autonomous Tesla “robotaxis” on the roadways by the end of 2020),
after Hothi photographed a Tesla test car preparing for the event on a public
highway.
Tesla accused Hothi of trespassing, stalking, harassing, and
endangering company employees, including “swerving dangerously close”
to the test vehicle in the April 2019 incident and hitting a security guard with
his car in an earlier incident. None of these allegations was true. Despite
claiming to possess abundant photographic and video evidence of Hothi’s
supposed misdeeds, Tesla refused to produce it when ordered to, choosing
instead to drop its lawsuit under a phony pretext. As Tesla’s accusations were
made in legal pleadings, Tesla enjoyed an absolute litigation privilege
immunity, leaving Hothi with no remedy in defamation.
However, after Tesla dropped its lawsuit, Musk, in an e-mail
exchange which was later widely published, amplified Tesla’s harassment
Page 12 accusations against Hothi and added a new one, accusing Hothi of having
“almost killed” multiple Tesla “employees.”
Hothi sued Musk for defamation. In his anti-SLAPP motion, Musk
asserted his accusations were true. Yet despite filing an avalanche of
irrelevant evidence, Musk again offered no photographic or video evidence
– which presumably would be dispositive – to support that defense.
The trial court, in a thoughtful analysis, dissected and rejected each of
Musk’s arguments. On appeal, Musk raises arguments he did not preserve
below and presents warmed-over versions of those he did. He repeatedly
relies on evidence the trial court expressly excluded, without even trying to
argue the abuse-of-discretion standard applicable to such rulings. The trial
court’s thorough and correct analysis should stand, its decision to deny
Musk’s anti-SLAPP motion should be affirmed, the case should be remanded
for trial, and this Court should award Hothi’s fees for this appeal.
STATEMENT OF FACTS
A.
Hothi and Musk – Hothi, a graduate student at the University
of Michigan, is a permanent resident of Fremont, California. (7AA 636-37 at
¶1.) Beginning in 2015, Hothi developed an interest in Tesla’s business.
(7AA 637:15-18 at ¶4.) Over time, he became skeptical of several of Tesla’s
claims about its technology, and he anonymously shared that skepticism on
Twitter under his account, @skabooshka. (7AA 637:19-21 at ¶5.)
Musk asserts that Hothi “boasts of being a member of the so-called
‘$TSLAQ’ group whose goal is to destroy Tesla and which has been the
subject of extensive press attention” (Appellant’s Opening Brief (AOB) at
9), and that Hothi is part of a “$TSLAQ conspiracy against Tesla” (Id. at 33.)
(The letter “Q” is added to a Nasdaq exchange stock ticker when the
company is in bankruptcy proceedings. Thus, the hashtag “TSLAQ”
reflected a belief that the company had no fundamental value.) However,
Musk presents no evidence that $TSLAQ is an organized “group,” never
mind a group whose goal is “to destroy Tesla” as opposed to being skeptical
about Tesla’s market valuation and/or doubtful about Musk’s veracity.
Page 13 For instance, Hothi doubted Musk’s 2016 claim that Tesla’s
manufacturing processes for its forthcoming Model 3 car would function
largely without human input and would be superior to those of other
automobile manufacturers. (7AA 637:22-27 at ¶¶6-7.) From observations
made outside Tesla’s Fremont factory, Hothi tracked Tesla’s actual
production rate (far lower than promised) and documented the company’s
erection of a tent for the manufacture of Model 3 cars. Hothi posted his
findings, including photos, on Twitter. (7AA 638:1-20 at ¶¶8-12.)
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. (7AA
637:15-18, 638:20-24 at ¶¶4, 13-14.) Early in 2017, pointing to such claims,
Tesla began offering “full self-driving” (“FSD”) as an expensive option. The
hundreds of millions of dollars from Tesla’s sale of FSD have been an
important and material component of Tesla’s revenues. (7AA 638:22-26 at
¶¶14-15.)
Tesla’s employees kept Musk apprised of Hothi’s Twitter postings,
and by January 2019, Tesla had identified Hothi and his car. (7AA 639:1415-640:3-11 at ¶¶18, 22-23; see also AOB at 17.)
B.
The Parking Lot Incident2 – On February 21, 2019, Hothi
lawfully entered Tesla’s Fremont factory/showroom grounds to gather

In his declaration, Hothi supports some of his testimony with
citations to police reports prepared after the Parking Lot Incident, including
the police’s determination that (1) “[a]s James approached the vehicle,
[Hothi] drove away at a slow rate of speed.” (7AA 639:25-27, 640:1-2,
641:1-13 at ¶¶21, 27-28; 7AA 677 at ¶3, emphasis added); (2) no contact is
visible in the videos and “James did not have any injuries.” (7AA 641:11-at ¶28; 7AA 677 at ¶4, emphasis added); (3) James did not believe the alleged
contact was intentional or that Hothi was aware of it (ibid.); and (4) Tesla
sought to have Hothi charged with a hit and run crime, but after reviewing
Tesla’s supposed evidence, the prosecutor’s office declined to do so. (7AA
Page 14 information about Model 3 production. (7AA 639:4-8 at ¶16.) Upon entering,
he backed his car into a publicly accessible parking space. (Ibid.) A Tesla
license plate reader identified him, prompting Tesla to send one or more
security officers, including Tyler James, to confront Hothi. (7AA 639:9-12640:3-11 at ¶¶17, 22-23.)
Rather than risk a confrontation, Hothi left Tesla’s site. James claims
he was struck in the knee. Hothi, however, has testified: “I drove slowly out
of my 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.” (7AA 640:12-17 at ¶24.)
Although Musk below characterized Hothi’s action as an “Assault of
a Tesla Employee” (1AA 42:6) and tells this Court that Hothi “Sideswipe[d]
a Tesla Employee” (AOB at 17), Tesla and Musk have consistently refused
to disclose James’ medical records, videos of the incident, or anything else
to corroborate James’ claim of contact, much less injury. (7AA 641:14-25,
644:4-645:23, 646:12-17 at ¶¶29-30, 42-48; 7AA 682-714, 717-743,
759-60.)
These events are referred to as the “Parking Lot Incident.”
C.
The Roadway Incident – On April 16, 2019, Hothi, while
driving, happened upon a Tesla vehicle with roof-mounted cameras. He
correctly surmised the vehicle was recording data for Tesla’s upcoming
640:1-4 at ¶31; 7AA 680 at p.5, “Disposition”). Hothi recognizes that Judge
Spain granted Musk’s Motion to exclude the police reports in their entirety
as hearsay. (8AA 832.) While that exclusion was in error because the reports
may be used for non-hearsay purposes, People v. Bell (2019) 7 Cal.5th 70,
100, Judge Spain in any event rejected Musk’s motion without relying upon
them.
Page 15 “Autonomy Day,” which took place six days later, and at which Musk would
tout Tesla’s “autonomous driving” capabilities and promise 1,000,“robotaxis” by the end of 2020. (7AA 642:23-643:2 at ¶35.) Hothi observed
and photographed the vehicle, but at no point drove recklessly or endangered
any of its occupants’ safety. (7AA 642:23-643:11 at ¶¶35-37.) Hothi later
posted the photographs on Twitter. (7AA 643:12-13 at ¶38.)
These events are referred to as the “Roadway Incident.”
D.
The Harassment Action – Evidently, Musk was irritated.
Three days after the Roadway Incident, Tesla filed a petition under Cal. Civ.
Proc. §527.83, claiming that during the incident, Hothi had dangerously
swerved his car towards the Model 3. (Tesla, Inc. v. Randeep Hothi (April
19, 2019) Alameda County Superior Court, RG19015770) (the “Harassment
Action”). (7AA 639:16-21, 640:20-26 at ¶¶19, 26; 7AA 653-674.)
Tesla’s petition also mentioned the Parking Lot Incident, asserting
James “suffered minor injuries” (7AA at ¶26; 7 AA 655) and in a declaration
from a declarant not present at the incident averred that Hothi “drove his car
quickly and recklessly out of the parking lot.” (7AA 639:25-640:2, 640:2026 at ¶¶21, 26; 7 AA 664 at ¶2.) Tesla gave Hothi no prior notice of the
petition’s filing, and consequently Hothi was absent and unrepresented when
the court granted the TRO. (7 AA 639:16-21 at ¶ 19.)
The same day Tesla filed its Harassment Action, Musk posted on
Twitter the photo of a Tesla identification badge featuring a cartoon character
in the shape of a penis and buttocks (referred to by commentators as

Cal. Civ. Proc. §527.8, a statute aimed at workplace violence, allows
summary proceedings for obtaining a TRO and generally disfavors any
discovery in advance of the subsequent evidentiary hearing. Tesla’s
shoehorning of the facts into a workplace violence case was likely motivated
by its desire to achieve an in terrorem effect with an ex parte TRO and to
avoid any discovery that might undermine its accusations.
Page 16 “dickbutt”) with the character labeled “Totally Legitimate” and the
classification labeled “Espionage.” (7AA 643:19-26 at ¶41, 7AA 716.) Musk
later removed the lewd post; however, other sources republished it. (7AA
643:22-26 at ¶41, 7AA 716.) Hothi concluded, quite reasonably, that given
his “earlier work observing Tesla’s production rates, tent construction, and
Autonomy Day testing, [Musk’s] publication of the badge was obviously an
insult aimed at me.” (7AA 643:26-644:2 at ¶41.)Before Tesla filed its Harassment Action, Hothi had managed to
remain largely anonymous on Twitter. (7AA 643:14-15 at ¶39.) That quickly
changed as news spread about Tesla’s accusations, and Hothi found himself
on the receiving end of a barrage of abuse on Twitter and other social media
outlets, where he was accused of being a terrorist, a criminal, and a homicidal
maniac. Some Tesla fanatics contacted the University of Michigan to urge
Hothi’s expulsion as a student. (7AA 643:16-18 at ¶40.)
E.
Tesla Fails and Refuses to Produce Evidence. In advance of
the injunction hearing, Hothi requested discovery. (7AA 641:14-19, 644:4-at ¶¶29, 42; 7AA 682-691, 717-727.)5 The Court ordered Tesla to produce

Even though the lewd badge is one of the two items of evidence
pointed to by the Trial Court as creating “at a minimum a triable issue of
fact” on the issue of malice (8AA 832), Musk avoids mentioning it in his
statement of facts and alludes to it only as “an unrelated Twitter post” in his
argument. (AOB at 64.) The record contains neither an alternative
explanation about what, if not Hothi, the “dickbutt” character was related to,
nor any explanation of why Musk later deleted the post.
Musk asserts: “Funding for Mr. Hothi’s litigation has been organized
by fellow $TSLAQ member and New York financier Laurence [sic] Fossi…”
AOB at 15, n.3. This assertion not only violates Cal. Rules of Court, rule
8.204(a)(2)(C), requiring that an appellant’s summary of facts be limited to
“significant facts” that are “in the record,” but is also misleading. Lawrence
Fossi, an attorney licensed in Texas and now living in Montana, never has
(and never would) describe himself as a “financier.” Moreover, $TSLAQ is
not a formal organization with “members;” rather, it is (at most) an informal
Page 17 its audio and video recordings made in connection with both the Parking Lot
and Roadway Incidents. (7AA 645:19-23 at ¶48, 7AA 704-09.) Tesla
vigorously opposed the request, even though, were its claims truthful, the
recordings would have established the veracity of the sworn statements on
which the injunction issued. (7AA 644:10-645:2, 645:13-646:4 at ¶¶43-44,
47-49; 7AA 692-703, 744-51.) Tesla asked the Court to reconsider its
discovery order; the Court, in a July 18, 2019 ruling, declined to do so, but
indicated it would review in camera any materials claimed as confidential.
Rather than allow the Court to see its supposed evidence, Tesla withdrew its
petition the next day, the agreed-upon deadline for producing the recordings.
(7AA 646:10-17 at ¶¶51-52, 7 AA704-09, 741-43.) The Court formally
dismissed the case on July 26, 2019, the date on which the evidentiary
hearing was scheduled. (7AA 646:15-17 at ¶52, 7AA 759-60.)Immediately after Tesla withdrew its petition, Hothi’s counsel sent
Tesla’s counsel an evidence-preservation letter stating that Hothi intended to
file an action for malicious prosecution. However, Hothi never filed such an
action because, as Hothi later determined, harassment actions as a matter of
law may not give rise to a malicious-prosecution claim. (Siam v. Kizilbash
(2005) 130 Cal.App.4th 1563, 1574 [civil harassment actions are not subject
to malicious-prosecution claims].) Neither Tesla nor Musk responded to this
letter, which was never mentioned again until Musk filed his anti-SLAPP
motion.
group of Tesla skeptics who post on Twitter. That Fossi undertook a
GoFundMe campaign to make it possible for Hothi to defend against Tesla’s
TRO and Musk’s defamatory slur is neither in the record nor in any way
relevant to the issues here.
Musk’s statement of facts omits mention both of Tesla’s continuing
effort to block discovery after July 1 and of the Court’s July 18 ruling. It also
twice incorrectly states the date on which Tesla withdrew its petition, which
was July 19, not July 26. (AOB at 19 & 39.)
Page 18 In his statement of facts here, Musk claims Tesla withdrew its petition
because producing the materials “would include confidential information and
would invade the privacy of Tesla employees, who had already been harassed
online due to litigation with Hothi.” (AOB at 19.) However, the only
evidence Musk offers for that claim is a letter from Tesla’s legal counsel.
(2AA 253-254.) That letter referred not to any evidence, but instead to
briefing that, itself, was free of any evidence of the supposed online
harassment. (7AA 644:18-645:2 at ¶44, 7AA 731-740, 742-743.) Moreover,
Tesla first made the invasion-of-privacy claim only on July 10, 2019, almost
three months after it filed the Harassment Action and almost two months
after Tesla first briefed the discovery issue. (7AA 644:18-645:2,
645:24-646:4 at ¶¶44, 49; 7AA 731-740, 745-751.) Further, after Tesla made
that claim, and before Tesla dismissed its Harassment Action, Hothi’s
counsel explicitly offered to have Tesla furnish a list of the portions of the
recordings it wished to have protected and to have the Court take up the
matter if the parties could not agree on whether to exclude such portions.
(7AA 646:5-9 ¶50; 7AA 756.)
The petition’s withdrawal in the Harassment Action is powerful
circumstantial evidence that Tesla (and Musk) knew the allegations were
contrived and would not be supported by the evidence. Indeed, at the Trial
Court in this case, despite presenting a raft of supposed evidence, and
claiming his accusations are true, Musk decided not to produce any of the
audio and/or visual recordings of either the Parking Lot or Roadway
Incidents. Instead, Musk appears to have conceded that Tesla confected its
scurrilous accusations (“…Musk’s statements were based on the reports of
his employees who made sworn statements about what had happened.”)
(AOB at 12 (emphasis added)); see also id. at 48 (Musk “relied on” the
declaration of Christine Leslie (which itself was hearsay) in making his
defamatory statements), id. at 62 (“Musk based his statements on reports he
Page 19 had received from Tesla employees...”). In other words, Musk concedes (or,
more likely, pretends) that before accusing Hothi of serious crimes, he never
bothered to view any of the many recordings of the Parking Lot and Roadway
Incidents, or to speak to the Tesla employee who was allegedly struck in the
parking lot, or to speak with the Tesla employees and/or agents in the Model
3 who were allegedly endangered by Hothi’s driving, or otherwise to inform
himself of the facts.
Moreover, the only sworn statements Musk claims to have relied on
in making his defamatory statements concerned only the Parking Lot Incident
(in which only one Tesla employee claims to have been struck – Hothi “made
contact with my left knee”) and not the Roadway Incident, which involved
multiple “employees” (the word used by Musk in his defamatory statements).
F.
Hothi’s Supposed ‘Harassment of Tesla Employees’ –
Musk asserts: “Hothi has gone to extreme lengths to obtain information about
Tesla, which has led to harassment of Tesla employees.” (AOB at 15.)
However, the only Hothi activities cited by Musk that can arguably be
classified as “harassing” are in connection with the Parking Lot and Roadway
Incidents (and, as detailed herein, Musk’s allegations about those incidents
are false). Nothing Hothi did or said in his discussions with Tesla employees,
whether in person or by phone, or in photographing the Tesla test vehicle,
can remotely be said to constitute “harassment.” (7AA 642:11-21, 643:6-at ¶¶33-34, 37.)
G.
Musk’s Three Defamatory Accusations in an E-mail
Exchange – On August 7, 2019, 19 days after Tesla dismissed its
Harassment Action, Musk engaged in an e-mail exchange with Aaron
Greenspan, who operates a website called plainsite.org, the stated purpose of
which is to make legal pleadings from courts across the country “accessible
to the public free of charge.” (1AA 139.) In the e-mail exchange, Greenspan
wrote that the way in which “Musk’s organization” had treated five named
Page 20 people (four of whom were former Tesla employees, and one of whom was
Hothi) – “among others” - was “truly shameful.” Regarding Hothi,
Greenspan wrote that Hothi’s interest in Tesla’s factory output arose
“precisely because you weren’t being open at all….” Musk responded by
stating that Hothi and the others named by Greenspan
… 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.
(1AA 69:25-070:12 at ¶7; 1AA 077.)
Musk’s statement thus alleged three separate acts of criminal conduct
by Hothi: that he (1) “actively harassed” Tesla employees, (2) “hit one of our
people” (James), and (3) “almost killed Tesla employees,” (emphasis added).
Because James was the only Tesla employee allegedly hit during the
February incident, the third charge necessarily accused Hothi of also “almost
killing” at least one (if not all three) of the Tesla employees involved in the
April roadway incident. Greenspan republished the exchange on Twitter.
(1AA 15:24-26 at ¶36.)
At the time Musk made his defamatory accusations, no issue was
under consideration or review in the Harassment Action. Musk had
voluntarily withdrawn his petition 19 days earlier, and the Court had formally
dismissed the action 12 days earlier. Hothi’s motion for attorneys’ fees in the
Harassment Action (later denied) was not filed until August 13, 2019, six
days after Musk made his accusations. (3AA 269-88.)
H.
Hothi’s Lawsuit, Musk’s Anti-SLAPP Motion, & the Trial
Court’s Ruling – On August 4, 2020, Hothi brought this defamation action,
based on Musk’s accusations in the e-mail exchange with Greenspan.
On October 30, 2020, Musk filed an anti-SLAPP motion pursuant to
Cal. Civ. Proc. §425.16. (1AA 34-56.) In his motion, Musk called Hothi a
“conspiracy theorist obsessed with spreading misinformation online about
Page 21 Tesla.” (1AA 040:3-4.) Hothi responded, and Musk replied. (7AA 616, 8AA
781.)
The Trial Court denied Musk’s motion. (8AA 829-32.)
STANDARD OF REVIEW
Musk erroneously claims this Court reviews de novo “all aspects of
the Section 425.16 analysis.” (AOB at 24-25.) While this Court reviews a
Trial-Court’s legal conclusions de novo, “[e]videntiary challenges are
reviewed only for abuse of discretion.” (Pub. Employees’ Ret. Sys. v.
Moody’s Invs. Serv., Inc. (2014) 226 Cal.App.4th 643, 683, citing Powell v.
Kleinman (2007) 151 Cal.App.4th 112). “As such, [this Court] will not
overturn an evidentiary ruling on appeal unless ‘the trial court exceeded the
bounds of reason, all of the circumstances before it being considered.’” (Id.,
citations omitted.)
ARGUMENT
I.
THIS COURT MAY DISREGARD VARIOUS LEGAL
ARGUMENTS AND FACTUAL ASSERTIONS MUSK
IMPROPERLY PRESENTS.
Musk spends several pages arguing that the “functional relationship”
test of FilmOn.com Inc. v. DoubleVerify Inc. (2019) 7 Cal.5th 133, 149-(“FilmOn”) affords his email anti-SLAPP protection. (AOB at 29, 33-37.)
But Musk’s Trial-Court motion failed to mention either the functional
relationship test or FilmOn; he addressed them only in his reply. (1AA 34;
8AA 786-788.) As such, he has waived any argument on that point to this
Court. (Ruiz v. Moss Bros. Auto Grp. (2014) 232 Cal.App.4th 836, (“grounds for relief first raised in reply papers in the trial court are not
properly presented to the trial court and are not properly before the appellate
court”), citing Regency Outdoor Advertising, Inc. v. Carolina Lanes, Inc.
(1995) 31 Cal.App.4th 1323, 1333.)
Page 22 Elsewhere, Musk fails to properly present issues he did preserve.
Thus, while he argues that the Trial Court improperly excluded Zalduendo
Declaration Exhibits A-C, he does so only in a footnote. (AOB 13-14 n.2.)
He raises various other arguments only in footnotes. See infra. Such
presentation violates this Court’s briefing rules (Evans v. Centerstone Dev.
Co. (2005) 134 Cal.App.4th 151, 160, citing California Rules of Court, rule
14(a)(1)(B).)7 This Court need not even consider, and may disregard, issues
appellant raises only in a footnote. (Id., citing Roberts v. Lomanto (2003) Cal.App.4th 1553, 1562; accord Barker v. Garza (2013) 218 Cal.App.4th
1449, 1453 n.7 (“we decline to consider this issue because it was presented
only in a footnote in [appellant’s] opening brief”).
Beyond its footnote location, Musk’s challenge to the Trial Court’s
evidentiary ruling also is substantively deficient, since it simply asserts that
his attorney’s declaration “is sufficient” without explaining how the court in
holding otherwise abused its discretion – i.e. “exceeded the bounds of
reason.” This Court may disregard conclusory legal arguments and treat as
forfeited “a point that is not supported by cogent legal argument,” since “the
appellate court is not bound to develop the appellant’s argument for him….”
(Cty. of Sacramento v. Rawat (2021) 280 Cal.Rptr. 267) (citations omitted.)
And because that briefing failure leaves Exs. A-C to the Zalduendo
Declaration outside the record, this Court may disregard Musk’s numerous
references to it. (Id.) (cleaned up)) (“we may disregard factual contentions
that are…based on information that is outside the record”). Though the Court
would be justified in striking all or part of Musk’s brief for its many citations
to stricken exhibits (AOB 13, 15-16, 37) it may instead simply disregard
those offending portions. (City of Arcadia v. State Water Resources Control
Bd. (2010) 191 Cal.App.4th 156, 180.)

Now rule 8.204(a)(1)(B).
Page 23 II.
MUSK’S DEFAMATORY SPEECH WAS NOT MADE IN
CONNECTION WITH A PUBLIC ISSUE.
Cal. Civ. Proc. §425.16(e)(4) applies “to conduct in furtherance of the
exercise of the constitutional right of petition or the constitutional right of
free speech in connection with a public issue or an issue of public interest.”
Musk argues his remarks about Hothi were protected statements because he
and Tesla have high profiles such that the public has an interest in all things
relating to them, including discussions about the so-called $TSLAQ. (AOB
at 29-31.) However, denying Musk’s anti-SLAPP motion Judge Spain wrote,
“the speech at issue in this action are accusations that Plaintiff actively
harassed and almost killed multiple Tesla employees, and not statements
regarding Tesla’s operations or its vehicles.” (8AA 831.) Judge Spain further
explained, “Courts require that a ‘functional relationship exists between the
speech and the public conversation about some matter of public interest.’”
(Id. citing FilmOn, 7 Cal.5th at 149-50.) “[I]t is not enough that the statement
refer to a subject of widespread public interest; the statement must in some
manner itself contribute to the public debate.” (Id., citing FilmOn at 150.)
Musk concedes that to determine “whether a statement is protected as
one [made] ‘in connection with a public issue or an issue of public interest,’”
the court first must ask what issue or interest the speech implicates. (AOB at
28-29, citing FilmOn, 7 Cal.5th at 149-50.) He further acknowledges that to
answer this question, this Court must “look to the content of the speech.” (Id.
at 29.) However, Musk then skips the first step of examining the statement’s
content. He completely ignores what he wrote about in the subject e-mail –
Hothi’s alleged criminal activity – and instead selects topics (Tesla’s
manufacturing and technology, its treatment of critics, and the supposed
“conspiracy” against Tesla) that are not mentioned in the e-mail and that are,
at best, only remotely related to the email’s content. Musk then identifies
those remotely related topics as relating to a public interest. However, the
Page 24 question is not whether Musk, Tesla, and $TSLAQ generally are matters of
public interest, but whether Hothi’s alleged harassment, contact with a Tesla
employee, or near killing of Tesla employees are topics of public interest. As
the Trial Court correctly held (8AA 831), they are not.A.
Musk’s Accusations Did Not Address any Issue of Public
Interest.
“In evaluating the first prong of the anti-SLAPP statute, [the court]
must focus on “the specific nature of the speech rather than the generalities
that might be abstracted from it.” (World Financial Group, Inc. v. HBW Ins.
& Financial Services, Inc. (2009) 172 Cal.App.4th 1561, 1570, citing
Commonwealth Energy Corp. v. Investor Data Exchange, Inc. (2003) Cal.App.4th 26, 34.) By focusing on society’s general interest in Tesla,
Musk, and $TSLAQ instead of the specific defamatory speech upon which
the complaint is based, Musk resorts to the oft-rejected, so-called
“synecdoche theory of public issue in the anti-SLAPP statute,” where “[t]he
part [is considered] synonymous with the greater whole.” (Commonwealth
Energy Corp. at p. 34.)
“Selling an herbal breast enlargement product is not a disquisition on
alternative medicine.” (Id. referring to Consumer Justice Center v. Trimedica
International, Inc. (2003) 107 Cal.App.4th 595.) “Lying about the supervisor
of eight union workers is not singing one of those old Pete Seeger union

Musk also misconstrues the FilmOn Court’s observation that
defendants “virtually always” succeed in identifying issues of public interest
connected to the speech (AOB at 29, citing 7 Cal. 5th at 150). With its
statement, the Court was pointing out that defendants frequently engage in
precisely the transformative exercise Musk engaged in here – selecting a
level of generality far removed from the actual subject of the speech. Indeed,
the Court’s full sentence reads, “The travails of the lower courts demonstrate
that virtually always, defendants succeed in drawing a line – however
tenuous – connecting their speech to an abstract issue of public interest.” (Id.)
(emphasis added).
Page 25 songs (e.g., “There Once Was a Union Maid”).” (Id. referring to Rivero v.
American Federation of State, County and Municipal Employees, AFL-CIO
(2003) 105 Cal.App.4th 913.) “[H]awking an investigatory service is not an
economics lecture on the importance of information for efficient markets.”
(Id., referring to the facts of the case at issue, Commonwealth Energy Corp.)
And falsely claiming Hothi harassed and almost killed multiple Tesla
employees is not informing any debate about Tesla, Musk, or $TSLAQ.
When one “looks to the content” of Musk’s accusations, as our
Supreme Court requires (and as Judge Spain did, 8AA 831), it is clear his
comments were not directed at issues of public concern. Rather, they accused
a single person of three separate acts of criminal conduct. The accusations in
no way advanced any issue of public interest to which Musk tries to pin his
remarks. They did not remotely implicate Tesla’s automation technology or
production rates, nor contribute to any public debate about $TSLAQ in
general or Hothi (or any other Tesla critic) in particular. Instead, they simply
leveled three false charges as a means of tarring Hothi’s reputation.
Importantly, the accusations were made in a private, one-to-one email.
Finally, the mere fact that a speaker is globally famous does not
transmute a private dispute into an issue of public interest. (Hailstone v.
Martinez (2008) 169 Cal.App.4th 728, 736 (“Hailstone”); Grenier v. Taylor
(2015) 234 Cal.App.4th 471, 481-82 (“Grenier”).) Such a rule would give
both Musk and Tesla complete immunity to defame anyone at any time on
any topic. Nor does an issue become one of public interest merely because a
corporation is involved, contrary to Musk’s cited cases. (AOB at 30-31.)
Judge Spain correctly required Musk to meet a higher standard and rejected
his motion when he did not. (8AA 831, citing Ampex Corp. v. Cargle (2005)
128 Cal.App.4th 1569, 1576.)
Page 26 B.
Musk’s Accusations Bear No ‘Functional Relationship’ to
any Issue of Public Interest.
Even assuming Musk could make the first showing in the FilmOn.com
analysis, he cannot satisfy the second, which asks “what functional
relationship exists between the speech and the public conversation about
some matter of public interest.” (FilmOn.com, supra, 7 Cal.5th at 149-50.)
That analysis “must include a consideration of the context or specific
circumstances in which the statement was made, ‘including the identity of
the speaker, the audience, and the purpose of the speech.’” (Murray v. Tran
(2020) 55 Cal.App.5th 10, 28, quoting FilmOn.com, 7 Cal.5th at 140, 15152, court’s emphasis.) Because subsection (e)(4) is a catchall provision that,
unlike the other subsection (e) provisions does not apply to a specified
audience or location or otherwise set bright-line rules, “courts should engage
in a relatively careful analysis of whether a particular statement falls within
the ambit of ‘other conduct’ encompassed by subdivision (e)(4).”
(FilmOn.com, 7 Cal.5th at 145.)
Musk’s defamatory e-mail exchange had only two participants: Musk
and Greenspan. Musk attempts to dismiss this important contextual element
by claiming that §425.16(e)(4) protects “private communications concerning
issues of public interest; no public forum is required.” (AOB at 28, citing
Hailstone, supra, 169 Cal.App.4th at 736.) This suggestion, however, is
contrary to FilmOn’s direction that this Court consider the fact that Musk’s
e-mail was directed to an audience of only one. (See FilmOn.com, 7 Cal.5th
at 153 [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, undefined group of people.
The facts and context of Hailstone are far removed from those of this
case. In Hailstone, a former union business agent accused of
Page 27 misappropriating funds sued union officials for defamation relating to his
termination and argued that §425.16(e)(4) did not protect their statements.
Reviewing the denial of defendant’s anti-SLAPP motion, this Court
explained that the “statements were not made in connection with a topic,
person or entity of widespread public interest.” (Id. at 737.) Rather, the case
fell into a class of cases where the “‘First Amendment activity is connected
to an issue of interest to only a limited but definable portion of the public; a
narrow segment of society consisting of the members of a private group or
organization.’” (Ibid., citing Du Charme v. IBEW (2003) 110 Cal.App.4th
107, 118.) Thus, even though the statements were not made in connection
with a topic, person, or entity of widespread public interest, they were about
an ongoing controversy that was significant to a definable group of more than
10,000 union members. Accordingly, defendants’ statement to plaintiff,
copied to a handful of union officials, were protected under §425.16(e)(4)
even though the statements were not made in a public forum. But that is
hardly what happened here, where there was no public interest, nor any
significant definable group with a direct interest in Musk’s accusations.
Musk’s citation to Dyer v. Childress (2007) 147 Cal.App.4th 1273 is
similarly unavailing. Moving to dismiss Dyer’s suit relating to a fictional
movie that included an unflattering character based on Dyer, defendants
argued that, because courts have applied §425.16(e)(4) to cases involving
private communication to a single person, a more extensively distributed
movie must necessarily be of public interest. (Id. at 1282.) This Court
rejected that argument:
It does not follow […] that a more extensively published
statement therefore is in the public interest. Regardless of the
scope of publication, protection under the anti-SLAPP statute
turns on whether the activity of the defendant involves the right
of petition or free speech in connection with a public issue.
(Id. at 1273) (citation omitted.)
Page 28 Thus, Dyer does not stand for the proposition that courts should not
consider the extent of publication when determining public interest. Rather,
it holds that a defendant cannot transform a statement unrelated to a public
interest into one that is, merely by broadcasting it more widely. Here, not
only were Musk’s statements unrelated to an issue of public interest, but they
were privately directed to an audience of one. The fact that Greenspan later
broadcast the e-mail exchange more widely does not transform it into one of
public interest.
Indeed, post-Hailstone and Dyer, the Supreme Court has explicitly
ruled that even if a statement addresses an issue of public interest,
§425.16(e)(4) may not provide protection if it is presented to a limited
audience. In FilmOn.com, supra, 7 Cal.5th 133, a for-profit web-based
entertainment distribution business sued a for-profit online tracking and
verification business (DoubleVerify) for disparaging statements in a
confidential report sent to DoubleVerify’s paying clients. (Id. at 140.)
Applying its rule that careful analysis is required when a defendant invokes
subsection (e)(4), the Supreme Court considered multiple factors including
whether the statements represented a business interest and whether they were
directed privately or publicly. The Court stated it has “never suggested […]
that it will never matter whether the conversations were private or widely
broadcasted and received, and for what purpose. (Id. at 146.)
Musk’s email exchange with Greenspan reflects merely a private
sniping match that did not further “some public conversation about some
matter of public interest.” (Murray, supra, 55 Cal.App.5th at 28, quoting
FilmOn.com, supra, 7 Cal.5th at 140, 149-152.) While earlier e-mails
discussing various topics were copied to other parties, Musk did not include
those parties in the separate e-mail defaming Hothi, which he directed only
to Greenspan. (1AA 077.) Musk does not argue that he intended Greenspan
to be a conduit between himself and a wider audience. While Greenspan
Page 29 operates a website that makes court documents publicly available, there is no
claim (or record evidence) he is a reporter.
Nor was Musk refuting any statements Hothi previously made. He
was not arguing that Hothi’s opinions about Tesla were misguided or even
that Hothi was mistaken or lying. His claims that Hothi harassed, hit, and
almost killed Tesla employees say nothing about whether Tesla can meet its
manufacturing goals or is being honest about its technologies. The statements
do not even inform the debate concerning how Tesla treats its critics. Rather,
Musk was defending his reputation and conduct against Greenspan’s
aggressive statements in a private email exchange and chose to do so by
assassinating Hothi’s character. Ad hominem remarks differ fundamentally
from those challenging an argument’s merits. (Huntington Beach City
Council v. Superior Court (2002) 94 Cal.App.4th 1417, 1430, “Trying to win
an argument by calling your opponent names … only shows the paucity of
your own reasoning.”)
Caselaw applying FilmOn.com confirms that Musk’s accusations are
not protected under subdivision (e)(4). (Murray, supra, 55 Cal.App.5th at 3132 [emails calling a dentist’s work “below par” did not meet FilmOne
“functional relationship” test because, although involving a subject of public
interest (the quality of dental care), they 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”]; Wilson v. CNN (2019) 7 Cal.5th 871, 899-[employer’s comments to plaintiff’s supervisor and prospective future
employers that plaintiff 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 referred to an issue of public interest, but also that its
speech contributed to public discussion or resolution of the issue”]; compare
Page 30 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 defendant made
the statements to other health-care providers, medical practitioners,
plaintiff’s patients, and the general public, “[b]ecause speech to the public
about a doctor’s qualifications furthers public discourse on that matter.”] )
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 production and safety. Musk’s statements were not directed at Hothi’s
criticism of Tesla or the veracity of earlier comments about Tesla. The Trial
Court expressly recognized this in finding Hothi established a probability of
success on the merits (8AA 832). See infra.
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, 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.’” (Id., court’s emphasis, citing Du Charme, supra, Cal.App.4th at 115.) In complaining to Greenspan, Musk was not
participating in public debate or discussing matters of public significance. He
was instead lashing out; confecting charges of criminal conduct against a
graduate student who had the temerity to suggest the emperor has no clothes.
C.
Musk’s Defamatory Statements Were Not About an Issue
Pending Before a Court.
Musk invokes Cal. Civ. Proc. §425.16(e)(2), which protects a written
statement “made in connection with an issue under consideration or review
by a legislative, executive, or judicial body, or any other official proceeding
Page 31 authorized by law.” He argues that his false statements involved “issues that
were pending before the Court.” (AOB at 37.) 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. of Trs. of Cal. State Univ. (2019) Cal.App.5th 745, 765-66, cleaned up, citation omitted.) “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.)
As Judge Spain correctly noted, “at the time the subject e-mail was
written, the TRO Petition had already been dismissed. While Hothi filed a
motion for attorney’s fees after the e-mail was written, the fees were not the
subject of the alleged defamatory statements.” (8AA 831.) Not only were
fees not the subject of the defamatory e-mail, but Hothi’s motion for fees was
not filed until six days after Musk wrote the e-mail.
Musk’s own cited cases, AOB at 38-39, torpedo his argument. In
Annette F. v. Sharon S. (2004) 119 Cal.App.4th 1146 (“Annette F.”), arising
from a highly publicized divorce/custody battle, defendant accused her
partner, Annette, of being “a perpetrator of domestic violence.” When
Annette sued for defamation, the court found the statements covered by the
anti-SLAPP statute because, “Annette’s adoption petition was pending in the
superior court at the time, and the writ proceedings concerning the validity
of second-parent adoptions were pending in the appellate courts.” (id. at
1160-1161.) The alleged defamatory statements were directly related to the
issues then being litigated and therefore fell squarely within the speech
contemplated by California’s anti-SLAPP statute. Here though, Tesla had
abandoned its claim against Hothi by voluntarily dismissing its Harassment
Page 32 Action on July 19, 2019. At the time of Musk’s subsequent accusations, there
simply was no “issue under consideration or review” by any court, as the
Trial Court correctly held. (8AA 831.) Likewise inapposite is Musk’s citation
to Summerfield v. Randolph (2011) 201 Cal.App.4th 127, 136, which protects
statements “if they relate to an issue being litigated” (AOB at 38). No issue
was being litigated on the date of Musk’s email.
Alternatively, Musk argues that Hothi’s transmission of an evidencepreservation letter (which he inaccurately calls a “demand letter”) means
Musk’s accusations were made “in connection with” impending litigation.
(AOB at 41.) While numerous cases discuss “demand letters” in the context
of §425.16(e)(2)’s “official proceeding” provision, Hothi’s research has not
uncovered a single case under that provision involving a documentpreservation letter.
More fundamentally, the litigation Hothi was considering was
unavailable because harassment actions as a matter of law may not give rise
to a malicious-prosecution claim. (Siam, supra, 130 Cal.App.4th at 1574.)
Where litigation not only was unfiled, but as a matter of law could never be
filed, it simply cannot be said to be “impending.”
Musk offers no authority to the contrary, and indeed misconstrues the
cases he relies upon. In Neville v. Chudacoff (2008) 106 Cal.App.4th 1255,
the court held that allegations in a demand letter are protected when the
person making the allegations later files suit. But that is not what happened
here. Musk did not make false allegations in a demand letter, and he never
sued or threatened to sue Hothi. While one federal district court held a
response to a demand letter can in some cases also be a pre-litigation
communication, that is not what occurred here, either. (Canaday v. PeoplesPerry (N.D. Cal. Dec. 15, 2017, No. 17-cv-05602-JSC) 2017 U.S. Dist.
LEXIS 206804, at *11.) In making his accusations, Musk was not responding
to Hothi’s July 19, 2019 preservation letter. That letter was sent to counsel
Page 33 for Tesla and received no response. Which brings up yet another point fatal
to Musk’s argument: he was unaware of the letter when he defamed Hothi to
Greenspan. Hothi below pointed out Musk’s failure to allege knowledge of
the letter (7AA 616:4-7; 8AA 781-96) and Musk did not address that in his
reply brief, nor in his opening brief here.
III.
THE TRIAL COURT CORRECTLY HELD THAT HOTHI
HAS A PROBABILITY OF PREVAILING ON THE MERITS.
Even were Musk able to establish that his accusations arose from
protected activity, Hothi has demonstrated a probability of prevailing on the
merits of his defamation claim. To do so, Hothi need show only that his
complaint “is both legally sufficient and supported by a sufficient prima facie
showing of facts to sustain a favorable judgment if the evidence submitted
by [him] is credited.” (Navallier v. Sletten (2002) 29 Cal.4th 82, 88.)
(“Navallier”). The Trial Court correctly held that he did. (8AA 831-32.)
Musk does not (and cannot) deny he accused Hothi of criminal
conduct – harassment/stalking (Cal. Penal Code § 646.9(a)), reckless driving
(Cal. Veh. Code § 23103(a)), and assault with a deadly weapon, his car (Cal.
Penal Code § 245(a)(1); People v. Bipialaka (2019) 34 Cal.App.5th 455,
459). Such accusations, if false, are plainly defamatory. “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, 695 (“Summit Bank”), citations omitted.) As
Judge Spain noted, quoting from Barnes-Hind, Inc. v. Superior Court (1986)
181 Cal.App.3d 377, 385, “Perhaps the clearest example of defamation per
se is an accusation of a crime.” (8AA 831.)
Musk argues that his accusations were true and, even if not true, were
merely opinions. However, as Judge Spain determined, Hothi made a
sufficient prima facie showing that the accusations are untrue and that, “at
Page 34 best, the subject statements were opinions implying assertions of fact, and
are therefore actionable.” (8AA 832.)
A.
Musk’s Claims that Hothi “Harassed” Tesla Employees,
“Sideswiped” One, and “Almost Killed” Multiple “Tesla
Employees” Are Neither True nor Protected as Opinions.
1.
The ‘Harassment’ Accusation
Musk argues there is “ample, undisputed evidence that Hothi harassed
Tesla employees” (AOB at 45), but nothing he describes supports that claim.
There is no evidence Hothi harassed a single Tesla employee in
photographing factory/showroom grounds, in speaking with Tesla
employees, or in tracking vehicle production. Significantly, Musk does not
identify a single employee who claims to have been harassed when Hothi
conducted those activities. To the contrary, Hothi explicitly states that he
never engaged in any of the activities prohibited by California’s criminalharassment statue, Cal. Pen. Code §646.9, prohibits. (7AA 642:11-21,
643:6-11 at ¶¶33-34, 37.)
2.
The ‘Sideswipe’ Accusation
As for hitting a Tesla employee with his car, Hothi avers:
I drove slowly out of my 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 thought I had
struck anyone, I would have stopped. I later learned that Tesla
recorded the interaction, and I believe the recordings will
establish that my car did not come into contact with Mr. James.
(7AA 640:12-17 at ¶24.)
Hothi consequently presented a sufficient prima facie showing that
Musk’s accusation is untrue. Notably, Tesla in the Harassment Action
refused to, and Musk in this proceeding has failed to, produce any records to
indicate whether James was actually struck or, indeed, whether he even
sought medical attention. (7AA 641:14-25 at ¶¶29-30.)
Page 35 3.
The ‘Almost Killed’ Accusation
Finally, Musk’s accusation that Hothi “almost killed Tesla
employees” (plural, emphasis added) can reasonably be understood to refer
only to the Roadway Incident, as there was but a single Tesla employee close
to Hothi’s car in the Parking Lot Incident, and as Tesla in its Harassment
Action had already famously accused Hothi of “stalk[ing], harass[ing], and
endanger[ing]” the three occupants of the Tesla test vehicle by “swerving
dangerously close to the vehicle.” (7AA 655 at numbered ¶7.)
As Judge Spain determined, “[Hothi] points out that [Musk] has only
provided evidence of the accusation that [Hothi] allegedly injured the
security officer at the Tesla factory, but the subject statements accuse [Hothi]
of almost killing multiple Tesla employees.” (8AA 832.) Regarding the
Roadway Incident, Hothi is adamant that he engaged neither in reckless
endangerment nor any other activity that would constitute “harassment”
under California penal law. (7AA 642:11-21, 643:6-11 at ¶¶33-34, 37.).
Again, both Tesla and Musk have audio and video recordings that could
vindicate their accusations, yet have resolutely refused to produce them.
Despite facing a “clear and convincing evidence” burden at the
injunction hearing in the Harassment Action, Tesla’s counsel came to the
hearing (which was continued) without any of the witnesses who had sworn
out declarations supporting its petition. (7AA 645:3-7 at ¶¶45.) Then, when
ordered by the Court to produce the video recordings, Musk’s company
instead chose to withdraw its petition – to shut up rather than put up. And
now in pursuing his anti-SLAPP motion, Musk likewise has not offered as
evidence any of the materials sought by Hothi in the Harassment Action –
even though, presumably, they would establish the truth of his contentions.
Page 36 B.
Musk’s Argument that ‘Almost Killed’ Referred to the
Parking Lot Incident, not the Roadway Incident Is
Implausible.
Musk urges that his accusation that Hothi “almost killed Tesla
employees” relates to the Parking Lot Incident rather than the Roadway
Incident. (AOB at 49.) This is not a reasonable interpretation. In the Parking
Lot Incident, only one Tesla employee was even close to Hothi’s vehicle, and
yet Musk wrote “employees,” not “an employee.” Although another Tesla
employee was present, Musk does not allege that Hothi came near the other
employee. In fact, in his declaration, James suggests the other employee
stayed back to photograph the exchange. (7AA 671 at ¶3 [“I would be the
contact officer and he would be the cover officer to obtain photographs.”].)
And Musk’s own motion argued only one employee, the security officer, was
involved in that incident. (1AA 049-50.)
By contrast, there were three Tesla employees in the test vehicle
during the Roadway Incident, the one that prompted the Harassment Action,
and which featured its most lurid accusations of “dangerous swerving.” The
reasonable and natural assumption is that Musk’s “almost killed” accusation
refers to the Roadway Incident.
Because Musk failed to brief any issue pertaining to his “almost
killed” charge against Tesla employees other than James, he cannot obtain
dismissal on that portion of Hothi’s claim. (Behr v. Redmond (2011) Cal.App.4th 517, 538 [failure to brief issue waives it].) Even were this Court
to agree with Musk on his remaining points, at a bare minimum the case must
go forward as to the other “employees” whom Musk claimed Hothi “almost
killed.”
Page 37 C.
Musk’s Plea for an Alternative Definition of ‘Harassment’
Is Unsupported in the Law and, in All Events, Unhelpful to
Him.
Musk implicitly concedes Hothi’s averments by arguing for a
different definition of “harassment” than that used in Cal. Pen. Code §646.(AOB at 46). But he cannot cite a single authority in which any court has
used “harassment” with the definition he proposes, nor does he attempt to
explain how Hothi’s action would qualify even under that dictionary
definition. Indeed, he failed properly to challenge the Trial Court’s exclusion
of his definition by arguing it only in a footnote. (AOB at 46 n.10).
Musk’s reliance on Ruiz v. Harbor View Cmty. Ass’n (2006) Cal.App.4th 1456, is misplaced. There, in a protracted dispute between a
homeowner and the homeowner’s association, the association’s attorney, in
a letter to the homeowner, stated, “you have devoted an inordinate amount
of time harassing the Harbor View Community Association directorship with
cockamamy [sic] document inspection requests and virtually stalking and
staring down the directors at their regularly scheduled meetings.” (Id. at 139.)
The appellate court did not even mention the word “harassing” in its analysis,
but rather focused on the “virtually stalking” allegation, and concluded it
was, in context, a metaphor used to describe the homeowner’s actions. (Id.
at 145.) Moreover, the “harassing” in the letter was immediately qualified by
identifying the harassment as document inspection requests that were
“cockamam[ie].” (Id. at p. 145.) Musk’s accusations against Hothi have an
entirely different context, and to the extent Musk qualified what he meant by
“harassed,” he did so by claiming Hothi had “almost killed Tesla employees”
– per se libelous, as the Trial Court correctly found. (8AA 831, citation
omitted).
Musk’s second case, Rosenaur v. Scherer (2001) 88 Cal.App.4th 260,
does not even mention, let alone discuss, the word “harass” or its cognates.
Page 38 Indeed, Rosenaur powerfully supports Hothi’s position. For starters, the
subject accusations (“thief” and “liar”) were uttered in the context of a
political debate over proposed zoning changes, not a private e-mail spat.
Moreover, in determining how the words would be interpreted, context most
definitely mattered:
[I]n the context of a heated oral exchange at a shopping center
in the midst of a hard-fought initiative contest, anyone who
might have overheard Scherer call plaintiff a thief or a liar
would have understood Scherer to be furious at, and critical of,
plaintiff's position, but would not likely have thought that
Scherer's supposed outburst was accusing plaintiff of a criminal
past or of dishonesty in his business dealings. There is a
difference between a false assertion in campaign literature that
a person was arrested or has a criminal past and the assertion of
invective in the midst of a heated confrontation over a political
issue, given that the standard is whether a reasonable fact finder
could conclude that the communication implied a provably false
factual assertion.
(Id. at 280, citations omitted.)
Here, Musk’s accusations resemble false assertions in campaign
literature far more than a spontaneous assertion of invective in a heated
confrontation. The accusations were directed to a third party, not to Hothi.
They were written, not spoken. They came on the heels of a months-long
legal proceeding in which Musk’s company made similar accusations both
by means of sworn written statements from the Tesla employees and in
carefully crafted legal papers prepared by its legal counsel. And they strongly
implied that Musk, who wields autocratic control over Tesla, was privy to
information that could support his claim of criminal conduct.
D.
Musk’s ‘Sideswipe’ and ‘Almost Killed’ Statements Were
Not Opinion but Contained Provably False Assertions of
Fact.
Musk argues his “sideswipe” and “almost killed” accusations, even if not
true, are protected opinion. (AOB at 49-53). Again, he errs.
Page 39 Since Milkovich v. Lorain Journal Co. (1990) 497 U.S. 1, even
something couched in terms of opinion may be actionable where it implies
an assertion of objective fact. (Bently Reserve L.P. v. Papaliolios (2013) Cal.App.4th 418, 426, citing Milkovich, 497 U.S. at 18-19, and
Overstock.com v. Gradient Analytics, Inc. (2007) 151 Cal.App.4th 688, 701.)
“The key is not parsing whether a published statement is fact or opinion, but
‘whether a reasonable fact finder could conclude the published statement
declares or implies a provably false assertion of fact.’” (Id., emphasis added,
citations omitted.)
Musk’s statements 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. Proc. §527.6 and/or §527.8 in that he “actively
harassed…Tesla employees.” Indeed, Musk elsewhere argues the
harassment statements, and his complaint that James was struck, are true –
thus establishing the allegations as ones of fact, not protected opinion. (AOB
at 44-50). As Hothi’s Declaration makes clear (7AA 642:11-21, 643:6-11 at
¶¶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
former tenant who posted a derogatory 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, this Court first rejected his hedging use of “likely” as immaterial in
trying to insulate his comments from liability. (218 Cal.App.4th at 428, citing
Milkovich, 497 U.S. at 18 and Weller v. ABC (1991) 232 Cal.App.3d
991,1004.) The Court noted that defendant “went out of his way to win
Page 40 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 428-429.) As the Court noted, “[s]uch
assurances suggest facts are being communicated, not opinions.” (Id. at 429,
citations omitted.)
The Court 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 implied
various acts of wrongdoing by the dentist. (Bently, supra, 218 Cal.App.4th
at 432-433, citing Wong, 189 Cal.App.4th at 1372-75.) Applying that rule,
the Court 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 as conveying facts – each provable and each meant
to be used by prospective tenants to evaluate [plaintiff’s] Building as a future
residential choice.” (218 Cal.App.4th at 433.)
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 almost 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, not as a disinterested
observer offering his opinion. In considering Musk’s attempts in his briefing
here to distance himself from his comments by claiming he was relying on
the reports of employees, and suggesting (though not stating) he never
reviewed any of the many recordings of the Parking Lot and Roadway
Incidents, this Court should be mindful that Musk is famously a
micromanager. As Hothi notes, “It is my belief, borne out by numerous
materials I have read through the years, that Defendant Musk actively
Page 41 manages Tesla and that nothing of significance happens without his approval
if not direction.” (7AA 642:5-10 at ¶32.) The Trial Court correctly held that
Hothi established that the challenged statements at minimum “were opinions
implying assertions of fact and are therefore actionable.” (8AA 832.)
Finally, Musk fails to properly argue his words were mere
“hyperbole,” since he raises the issue only in a one-sentence footnote, AOB
at 52 & n.11. (See Barker, supra, 218 Cal.App.4th at 1453 n.7.)
IV.
HOTHI IS NOT A LIMITED-PURPOSE PUBLIC FIGURE
BECAUSE MUSK’S STATEMENTS ARE NOT CONNECTED
TO MUSK’S PARTICIPATION IN PUBLIC DISCOURSE.
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 germane to [his] participation in the public
controversy” to render plaintiff a limited-purpose public figure. Id.
Musk’s attempt to classify Hothi as a limited-purpose public figure
fails for several reasons. The debates Musk identifies are not related to any
debate into which Hothi inserted himself. Musk also applies the wrong legal
standard for determining the relationship between defamatory statements and
a topic of public interest, and under the correct standard, his argument fails.
Finally, one of the key policy reasons for the public-figure framework would
be perverted by applying it here.
A.
Musk’s Accusations Do Not Concern Tesla’s Claims About
its Manufacturing and Technology.
In Grenier, plaintiff sought public attention as a pastor, author, and
radio host, yet the court found he was 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
Page 42 resolution of a discrete public controversy. The subject of morality is too
general and amorphous to qualify as such a controversy.” (Id. at p. 485.)
To the extent Musk asserts a general “public debate” regarding
Tesla’s vehicles and manufacturing processes, he frames the public
controversy at too general a level. Just as the overly broad definition in
Grenier would have transformed all clergy into all-purpose public figures on
all issues of morality (id.), Musk’s theory would effectively transform
anyone who tweets about Tesla into a general-purpose public figure.
B.
Musk’s Accusations Do Not Concern Tesla’s Treatment of
its Critics.
Musk claims that the following statement made in Hothi’s request to
continue the hearing on Tesla’s petition for restraining order is evidence that
Hothi inserted himself into a relevant public debate. (AOB at 56.)
Tesla’s accusations here fall into a long and disturbing pattern
of using lies and intimidation in an effort to silence critics. This
matter plainly has ramifications far beyond the individual
Respondent.
(5AA 408:18-19.)
While Tesla’s history of intimidating its critics may be an issue of
public debate, there is no evidence Hothi inserted himself into that debate. It
was Tesla that without justification sued Hothi in an attempt to silence him.
Where Tesla compelled him to appear in court and defend himself, Hothi’s
pointing out in a court filing that Tesla has a history of bad-faith actions can
hardly be considered inserting himself into that debate. (Time, Inc. v.
Firestone (1976) 424 U.S. 448, 457, “[While] participants in some litigation
may be legitimate ‘public figures,’ either generally or for the limited purpose
of that litigation, the majority will more likely resemble respondent, drawn
into a public forum largely against their will in order to attempt to obtain the
only redress available to them or to defend themselves against actions
brought by the State or by others….”); Waldbaum v. Fairchild Publications
Page 43 (1980) 627 F.3d 1287, 1296 n.23 (“publicity surrounding litigation does not
by itself elevate the parties to public figures, even if they could anticipate the
publicity…,” citing Wolston v. Reader's Digest Ass’n (1979) 443 U.S. 157.)
Musk asserts that, because the defamatory comments came in the context of
Musk’s e-mail exchange with Greenspan, Greenspan is therefore allowed to
set the parameters of germaneness. However, Musk offers no case law
supporting that novel theory.
C.
Musk’s Accusations Do Not Concern the Supposed
$TSLAQ ‘Conspiracy’ Against Tesla.
$TSLAQ is not a formal organization and does not have members.
Musk’s arguments relating to $TSLAQ are nothing more than another way
of stating that Hothi criticized Tesla and challenged its statements about its
technology and production rates. Musk made no mention of $TSLAQ in his
e-mail, and his accusations have no connection to $TSLAQ.
D.
Musk Applies the Wrong Standard Regarding Limited
Purpose Public Figures.
Musk argues that the legal standard applied by Judge Spain
concerning limited-purpose public figures is too restrictive and asserts that
“a statement made in discussing a public controversy is germane unless it is
‘wholly unrelated’ to that controversy.” (AOB at 58, emphasis added.) In
support, Musk relies on a non-controlling federal D.C. Circuit case,
Waldbaum, supra, 201 U.S.App.D.C. 301, and another D.C. Circuit case
citing Waldbaum, Jankovic v. Int'l Crisis Grp. (2016) 422 U.S.App.D.C. 259,
272. However, the D.C. Circuit’s ‘wholly unrelated’ standard for
germaneness does not even apply in all federal circuits, much less in
California state court. (McGlothlin v. Hennelly (D.S.C. Apr. 15, 2020, No.
9:18-cv-00246-DCN) 2020 U.S. Dist. LEXIS 66288, at *27 (“[T]he Fourth
Circuit employs its own five-part test to determine if a plaintiff is a limitedpurpose public figure. That test does not have a germaneness requirement
Page 44 that is comparable to Waldbaum’s test”); See also Ferris v. Larry Flynt
Publ’g, Inc. (D.Haw. Apr. 13, 2001, Case: Civil No. 99-00662HG-LEK)
2001 U.S. Dist. LEXIS 7759, at *14 (“The Waldbaum case does not state the
law in the Ninth Circuit”); Clardy v. Cowles Publishing (1996) 81 Wn.App.
53, 60 (D.C. Circuit’s three-step analysis does not set state law on the
subject).) Of the published California state cases that have cited Waldbaum,
three cited it for issues other than its limited-purpose public-figure analysis.
(See, Hoang v. Tran (2021) 60 Cal.App.5th 513, 536 (cited to support
general-purpose public figure analysis); Annette F., supra, 119 Cal.App.4th
at 1164 (cited for its definition of “public controversy”); Stolz v. KSFM FM (1994) 30 Cal.App.4th 195, 205 (cited for the proposition that
nationwide fame is not required to establish all-purpose public figure status).)
A fourth case, which Musk cited in support of his argument that the Court
should apply a broader standard, involved defamatory statements about an
earthquake preparedness expert (Copp) who passed out flyers, created a
video, and spoke at public meetings encouraging schools to change their
earthquake-response procedures. The defendant’s alleged defamatory
statements challenged Plaintiff Copp’s qualifications. Finding that Copp was
a limited purpose public figure, the court cited Waldbaum for the proposition
that, “[w]here the issue turns on expert or specialized knowledge, the
plaintiff’s own credentials assume such relevance to the controversy.” (Copp
v. Paxton (1996) 45 Cal.App.4th 829, 846.) The Copp Court neither cited nor
adopted the D.C. Circuit’s “wholly unrelated” standard, and Musk’s
statements here have nothing to do with Hothi’s status as an expert, his
specialized knowledge, or his credentials.
More importantly Musk distorts Waldbaum’s holding. Its full
quotation is, “[m]isstatements wholly unrelated to the controversy, however,
do not receive the New York Times protection.” (201 U.S.App.D.C. at 312.)
In other words, Waldbaum held that wholly unrelated statements are not
Page 45 germane, but it did not hold that a statement must be wholly unrelated in
order to avoid a classification as a limited-person public figure.
Makaeff v. Trump Univ., LLC (9th Cir. 2013) 715 F.3d 254, 269,
which Musk also cites, is inapposite. In Makaeff, the Ninth Circuit found
Trump University was a limited-purpose public figure in a case where the
University counter-sued a former customer and plaintiff for defamation in a
class-action lawsuit, because it voluntarily injected itself into the public
controversy by engaging in a large-scale media campaign that included
assertions about the university’s legitimacy. The “entire advertising
campaign [made] Trump University a limited-purpose public figure for
purposes of the controversy that arose about the legitimacy of its educational
practices because its extensive advertising efforts invited public attention,
comment, and criticism.” (Id. at 269, internal quotes and citation omitted.)
“There [was] a ‘direct relationship’ between Trump University’s
promotional messages and Makaeff’s allegedly defamatory statements.” (Id.,
citing Blue Ridge Bank v. Veribanc, Inc. (4th Cir. 1989) 866 F.2d 681, 687.)
By contrast, to the extent Hothi inserted himself into a public debate here,
the debate was about Tesla’s production rates and its claims about its
technology. Musk’s defamatory statements were unrelated to those issues.
If there is a debate over accusations that Hothi harassed, harmed, and
nearly killed Tesla employees, that debate cannot be considered a public one
because its outcome will have no effect beyond the parties involved. To be
treated as a limited-purpose public figure, the defamation must be about the
public issue into which the defamation plaintiff inserted himself. Musk
simply cannot establish such a connection here.
E.
Musk’s Defamatory Statements Are Not Germane to Any
Public Debate into Which Hothi Inserted Himself.
This is not the first time Musk has attempted to avoid liability for
defaming a critic by urging a court to apply his version of the “wholly
Page 46 unrelated” standard. In 2018, twelve Thai children and their soccer coach
became stranded in a cave. Under Musk’s direction, his companies designed
and produced three miniature submarines to assist in the rescue. Ultimately,
the children were rescued by conventional cave divers following a rescue
plan designed by Vernon Unsworth, who later derided Musk’s mini subs as
a “PR stunt” that “had absolutely no chance of working.” Musk responded
with a series of tweets calling Unsworth a pedophile who moved to Thailand
for its sex trade. Unsworth sued for defamation (Unsworth v. Musk (C.D.
Cal. Nov. 18, 2019, No. 2:18-cv-08048-SVW-JC) 2019 U.S. Dist. LEXIS
229076.)
Musk sought summary judgment, arguing that Unsworth was a
limited-purpose public figure because he inserted himself into the
controversy. Musk urged the court to apply Waldbaum’s “wholly unrelated”
standard, claiming that his statements were related to the controversy because
they went to Unsworth’s motivation for participating in the rescue. (Id. at
15.) The court rejected Musk’s arguments. While Musk made his defamatory
statements in response to Unsworth’s participation in a public debate, the
debate was about the efficacy of the submarines and the sincerity of Musk’s
participation in the rescue effort, not about whether Unsworth was a
pedophile. Here, just as Musk’s false claims about Unsworth’s pedophilia
were unrelated to the debate about the rescue, his accusations about Hothi
are unrelated to the debate about Tesla’s manufacturing capabilities and
technology.The only real argument Musk advances to link his defamatory
statements to the public debate is that the statements may help people decide
whether there is a reason to listen to Hothi. (AOB at 59) This is essentially
Though a jury ultimately no-caused Unsworth, that in no way affects the
summary-judgment ruling’s rejection of Musk’s attempted use of
Waldbaum.
Page 47 the argument Musk raised and the court rejected in Unsworth. (Unsworth at
24-27.) In ruling accusations of wrongdoing are not probative of a person’s
veracity, the court noted that Federal Rule of Evidence 608 does not allow
evidence of prior convictions for the purpose of impeachment unless they
were “clearly probative of truthfulness or untruthfulness, such as perjury,
fraud, swindling, forgery, bribery, and embezzlement” (Id. at p. 26.)
Similarly, under California law, one can only present prior bad acts if the
impeached witness was convicted of a felony and the impeaching party can
demonstrate the evidence of the conviction is more probative than
prejudicial. (Cal. Evid. Code §788.) Further, prior convictions can be used to
impeach only when the crime involved moral turpitude (People v. Castro
(1985) 38 Cal.3d 301, 305) and the impeaching party cannot enter any
evidence of the circumstances surrounding the conviction. (People v. Terry
(1974) 38 Cal.App.3d 432, 446.) These protections are built into evidence
law because rarely will evidence of bad acts be probative of a person’s
truthfulness. “While crimes such as murder and assault may say something
about the offender’s predisposition to commit assaultive offenses, they say
much less, if anything, about the offender’s propensity to lie under oath.”
(California Evidence Code - Federal Rules of Evidence: V. Witnesses:
Conforming the California Evidence Code to the Federal Rules of Evidence,
39 U.S.F. L. Rev. 455, 481.) Whether Hothi harassed, harmed, or nearly
killed Tesla employees says nothing about his credibility.
F.
Classifying Hothi as a Limited Public Figure Would Be
Inconsistent with the Doctrine’s Rationale.
In Reader’s Digest, our Supreme Court described the reasons for
treating public figures differently in defamation actions. “[P]ublic figures are
generally less vulnerable to injury from defamation because of their ability
to resort to effective ‘self help.’ Such persons ordinarily enjoy considerably
greater access than private individuals to the media and other channels of
Page 48 communication. This access in turn enables them to counter criticism and to
expose the fallacies of defamatory statements.” Reader's Digest Assn. v.
Superior Court (1984) 37 Cal.3d 244, 253, citing Gertz v. Robert Welch, Inc.
(1974) 418 U.S. 323. But here, one of the world’s wealthiest and most
famous people has defamed a graduate student. Nothing in the record
indicates Hothi benefited from his criticism of Musk or that his criticism
resulted in significant increased access to the media. On the other hand, Musk
has almost unlimited media access. Treating Hothi as a limited public figure
would run counter to the rationale for treating public figures differently from
private ones.
V.
THE TRIAL COURT CORRECTLY RULED THERE IS A
TRIABLE ISSUE OF FACT AS TO WHETHER HOTHI CAN
DEMONSTRATE MALICE.
Once again Musk mischaracterizes Judge Spain’s ruling and urges this
Court to apply an incorrect and overly restrictive standard.
A.
Hothi Is Not Required to Establish Malice to Overcome
Musk’s Anti-SLAPP Motion.
First Musk argues that “Hothi did not establish that Musk acted with
malice. (AOB at 61.) However, despite the broad protection the anti-SLAPP
statute provides, Hothi does not have to prove his case at this step of the
litigation by establishing malice. “In opposing an anti-SLAPP motion, a
defamation plaintiff need not establish malice by clear and convincing
evidence, the standard applicable at trial. Rather, the plaintiff must meet her
minimal burden by introducing sufficient facts to establish a prima facie case
of actual malice.” (Young v. CBS Broadcasting, Inc. (2012) 212 Cal.App.4th
551, 563.) Hothi met that standard.
As our Supreme Court has stated: “This court and the Courts of
Appeal, noting the potential deprivation of jury trial that might result were
[§425.16 and similar] statutes construed to require the plaintiff first to prove
the specified claim to the trial court, have instead read the statutes as
Page 49 requiring the court to determine only if the plaintiff has stated and
substantiated a legally sufficient claim.” (Briggs v. Eden Council for Hope
& Opportunity (1999) 19 Cal.4th 1106, 1123, citations omitted; accord,
Wilcox v. Superior Court (1994) 27 Cal.App.4th 809, 823; Church of
Scientology v. Wollersheim (1996) 42 Cal.App.4th 628, 654.)
“Under the second prong, to show a reasonable probability of
prevailing, a plaintiff must only present facts which, if proved at trial, would
support a judgment in plaintiff’s favor.” (Computer Xpress v. Jackson (2001)
93 Cal.App.4th 993, 1010.) “‘Reasonable probability’ in the anti-SLAPP
statute has specialized meaning. The statute requires only a ‘minimum level
of legal sufficiency and triability.’” (Mindys Cosmetics Inc. v. Dakar (9th
Cir. 2010) 611 F.3d 590, 598 (citation omitted).) The Supreme Court has
stated that “the plaintiff ‘must demonstrate that the complaint is both legally
sufficient and supported by a sufficient prima facie showing of facts to
sustain a favorable judgment if the evidence submitted by the plaintiff is
credited.’” (Navellier, supra, 29 Cal.4th at 88–89 (citations omitted)). In
ruling on an anti-SLAPP motion to strike, the Court does not weigh the
evidence, but instead must accept as true all evidence favorable to the
plaintiff. (Dixon v. Superior Court (Scientific Resource Surveys, Inc.) (1994)
30 Cal.App.4th 733, 746.)
Two of the cases Musk relies upon, Reader’s Digest, supra, 37 Cal.3d
at 259 and Jackson v. Paramount Pictures Corp. (1998) 68 Cal.App.4th 10,
26, involve rulings on summary judgment and therefore after plaintiffs had
the opportunity to take discovery. In other words, those cases cite standards
for what a plaintiff must prove at trial, or at least after discovery, and are
therefore inapposite. Although Christian Research Inst. v. Alnor (2007) Cal.App.4th 71, 91 involved review of a decision on an anti-SLAPP motion,
it is nonetheless problematic for the same reason, because the Christian
Page 50 Research court also relied on statements of the law applied in summary
judgment cases.
Musk claims his statements were not “patently completely at odds
with the actual events,” “fabricated by defendant,” or “so inherently
improbable that only a reckless man would have put them into circulation”
(AOB at 63, citing Walker v. Kiousis (2001) 93 Cal.App.4th 1432 and
Annette F., supra, 119 Cal.App.4th at 1170.) Musk’s reliance on Walker is
curious as the case clearly supports Hothi’s position. In Walker the court
found that “[s]uch factors as a failure to investigate the facts, or anger and
hostility toward the plaintiff, may indicate that the defendant had serious
doubts regarding the truth of the publication.” Because “the finder of fact
must determine whether the publication was indeed made in good faith,” this
Court found that, “it would have been error to strike [defendant’s] complaint
under section 425.16.” (Ibid.)
In any event, at least one of Musk allegations – that Hothi nearly killed
Tesla employees – is “patently completely at odds with the actual events,”
“fabricated by defendant,” and “so inherently improbable that only a reckless
man would have put them in circulation.” Musk, a serial fabulist, cannot
dispute his status as a “reckless man.”
B.
The Superior Court Did Not Apply the Wrong Standard
for ‘Malice.’
The Trial Court did not specifically identify the standard of malice it
applied in denying Musk’s anti-SLAPP motion, but pointed to two items of
evidence: the dickbutt meme Musk posted and the statement in Musk’s antiSLAPP motion that Hothi is a “conspiracy theorist obsessed with spreading
misinformation online about Tesla.” (8AA 832.) Musk asserts that the Trial
Court applied the wrong standard because it considered evidence showing he
was motivated by hatred or ill will towards Hothi. However, there is nothing
improper about considering such evidence, and the Trial Court’s
Page 51 consideration of the evidence does not demonstrate that it applied the
common-law standard of malice over the actual or constitutional malice
standard. “The existence of actual malice may be shown in many ways.”
(Herbert v. Lando (1979) 441 U.S. 153, 210 n.12, citing 50 Am.Jur.2d, Libel
and Slander §455 (1970) footnotes and citations omitted in original.) “As a
general rule, any competent evidence, either direct or circumstantial, can be
resorted to, and all the relevant circumstances surrounding the transaction
may be shown, provided they are not too remote, including … circumstances
indicating the existence of rivalry, ill will, or hostility between the parties
[or] facts tending to show a reckless disregard of the plaintiff’s rights…”,
(Ibid.) “The plaintiff may show that … defendant had failed to make a proper
investigation before publication of the statement in question…[and on] crossexamination the defendant may be questioned as to his intent in making the
publication.” (Ibid.) Further, “[a] defamation plaintiff may rely on inferences
drawn from circumstantial evidence to show actual malice.” (Christian
Research Inst., supra, 148 Cal.App.4th at 84, citing Reader’s Digest, supra,
37 Cal.3d at 208.) “In defamation claims generally, determinations about the
Defendant’s knowledge or intent ‘may be proved by inference, as it would
be rare for a defendant to admit’ to a culpable state of mind.” (Unsworth,
supra at *30, citing Solano v. Playgirl, Inc. (9th Cir. 2002) 292 F.3d 1078,
1085.) This is even truer at the pleadings stage where the plaintiff has had no
opportunity to take discovery.
California courts consider factors such as “[a] failure to investigate,
anger and hostility toward the plaintiff, [and] reliance upon sources known
to be unreliable or known to be biased.” (Reader’s Digest, supra, at pp. 61819 (citations omitted).) Employees seeking to gain favor with their CEO,
whom they knew to be hostile towards Hothi, would most certainly be
unreliable and biased. Musk should have understood his employees’
statements were unreliable especially since they puffed up relevant facts. For
Page 52 instance, Christine Leslie claimed Hothi “drove his car quickly and
recklessly out of the parking lot” (7AA 664 at ¶ 2) and Tyler James claimed
Hothi “at a fast rate of speed exited the parking stall” (7AA 671), whereas
the police officer who interviewed James and reviewed video from James’
cell phone camera and a parking-lot camera wrote that Hothi “drove away at
a slow rate of speed” (7AA 677 at ¶ 3).10 The Trial Court, in evaluating
Musk’s assertion that he believed the employee statements to be true, was
properly skeptical in view of Musk’s antipathy towards Hothi and, perhaps
as well, its awareness that Musk is a serial liar. (See Unsworth, supra at *“[Musk] does not contest that his accusations that Plaintiff is a child rapist,
married a 12-year-old child, engaged in sex trafficking, and was excluded by
the dive team because of his alleged misconduct with children are false.”)
Musk’s claimed failure to investigate by, at the very least, reviewing
the photographs and recordings in Tesla’s possession, also strains credulity.
Tesla had every opportunity to embarrass and defeat Hothi in the Harassment
Action by producing what ought to have been damning recordings, and it is
difficult to imagine Musk would not have enjoyed that opportunity. Tesla’s
pretext for dismissing that action was flimsy; both the Court and Hothi’s
counsel made offers that amply assuaged any reasonable confidentiality
concerns. (See supra, Statement of Facts, Part E.) In this proceeding, Musk
also had every opportunity to produce those same recordings for an easy exit,
provided they supported his accusations. “A party’s failure to produce
evidence may allow for the inference that the evidence would have been
unfavorable to the party….” (Hicks v. KNTV Television, Inc. (2008)
Although the trial court sustained Musk’s motion to exclude the
police report as hearsay, in this instance, Hothi does not rely upon the report
to prove that the statements in the report are true, but rather to establish that
Musk knew or should have known that his employee’s statements were
inconsistent and therefore unreliable.
Page 53 Cal.App.4th 994, 1010, citation omitted.) “[T]he inference generally applies
when the party has intentionally concealed or destroyed the evidence. (Ibid.)
Even if Musk’s claimed failure to investigate is credited, his failure to
review the photographs and video recordings before accusing Hothi of
criminal activities – especially given the fierce discovery battle fought over
those materials in the Harassment Action – would amount to “reckless
disregard of whether it was false or not” (McGarry v. Univ. of San Diego
(2007) 154 Cal.App.4th 97, 114). In view of the circumstances, Musk’s
“failure to investigate” can “fairly be characterized as demonstrating the
speaker purposefully avoided the truth or deliberately decided not to acquire
knowledge of facts that might confirm the probable falsity of charges.” (Id.,
citations omitted.)
Then, too, there is the dickbutt meme. Musk neither denies he
published it, nor explains the astonishing coincidence that he did so on the
day Tesla filed its suit against Hothi, nor explains the further remarkable
coincidence that Hothi had observed Tesla’s factory operations and its
“autonomous driving” test vehicle (hence, “Espionage”), nor explains why
he later deleted the Twitter post. Musk’s attorneys suggest the lewd posting
was “unrelated” to Hothi (AOB at 64) but are unable to point this Court to
any evidence to support that strained suggestion, and offer nothing to explain
away the circumstances that strongly suggest it was aimed at Hothi. Musk
himself, in his declaration (1AA 068-70), fails even to mention the meme.
Further, because actual malice requires a determination of Musk’s
knowledge and his attitude toward the material’s truth or falsity, the court
should be reluctant to dismiss Hothi’s claim where there has been no
opportunity for Hothi to probe Musk’s self-serving statements that he
believed the allegations to be true. (See Reader's Digest, supra, 37 Cal.3d at
251.)
Page 54 VI.
MUSK IS NOT ENTITLED TO APPELLATE FEES, AND
HOTHI IS.
Because the Trial Court correctly denied Musk’s anti-SLAPP motion,
Musk is not entitled to any fees. Hothi, however, is entitled to fees for
defending this appeal. Where an appeal of the denial of an anti-SLAPP
motion “raises no new permissible arguments that change the result,” the
appeal is frivolous and was only intended to cause further delay in the
litigation and this Court will award the prevailing respondent fees and
remand for the trial court to determine their amount. (City of Alhambra v.
D’Ausilio (2011) 193 Cal.App.4th 1301, 1310.)
That is precisely the case here. Musk waited until the very end of his
60-day appeal period before appealing. In his brief he properly raised no new
arguments that change the result below (though he tried to assert an
unpreserved one), and his appeal obviously was intended to take advantage
of the statutory automatic stay and further pound Hothi into submission via
delay. Under similar circumstances, this Court has “found ‘brought for
reasons of delay’ virtually tattooed on the appeal’s forehead.” (HewlettPackard Co., supra, 239 Cal.App.4th at 1186, quoting People ex rel. Lockyer
v. Brar (2004) 115 Cal.App.4th 1315, 1319) (cleaned up). The Court should
award Hothi fees for responding to this appeal and direct the trial court on
remand to determine their amount.
Page 55 CONCLUSION
The Trial Court correctly denied Musk’s anti-SLAPP motion. This
Court should affirm its ruling, award Hothi his attorneys’ fees for this appeal
and remand for further proceedings, including setting the amount of those
fees.
Dated: August 2,
Respectfully submitted,
/s/ D. Gill Sperlein
D. Gill Sperlein
THE LAW OFFICE OF D. GILL SPERLEIN
345 Grove Street
San Francisco, CA Telephone: (415) 404-Lawrence J. Fossi
(admitted pro hac vice )
25 Hawthorn Lane
Bozeman, MT Telephone: (713) 854-Michael F. Smith
(admitted pro hac vice)
THE SMITH APPELLATE LAW FIRM
1717 Pennsylvania Ave NW, Suite Washington, DC Telephone: (202) 454-Counsel for Plaintiff-Respondent
Randeep Hothi
Page 56 CERTIFICATE OF COMPLIANCE
Counsel of Record hereby certifies that pursuant to Rule 8.204(c)(1)
or 8.504(d)(1) of the California Rules of Court, the enclosed Brief of
Respondent is produced using 13-point or greater Roman type, including
footnotes, and contains 13,735 words, which is less than the total words
permitted by the rules of court. Counsel relies on the word count of the
computer program used to prepare this brief.
Dated: August 2,
Respectfully submitted,
/s/ D. Gill Sperlein
D. Gill Sperlein
THE LAW OFFICE OF D. GILL SPERLEIN
345 Grove Street
San Francisco, CA Telephone: (415) 404-Lawrence J. Fossi
(admitted pro hac vice )
25 Hawthorn Lane
Bozeman, MT Telephone: (713) 854-Michael F. Smith
(admitted pro hac vice)
THE SMITH APPELLATE LAW FIRM
1717 Pennsylvania Ave NW, Suite Washington, DC Telephone: (202) 454-Counsel for Plaintiff-Respondent
Randeep Hothi
Page 57 Kirstin Largent
631 S Olive Street

Respondent's Brief
On 8/2/upon:
ELECTRONICALLY SERVED ON:
Michael Timothy Lifrak, Esq.
QUINN EMANUEL URQUHART & SULLIVAN, LLP
865 South Figueroa Street, Tenth Floor
Los Angeles, California 90017-michaellifrak@quinnemanuel.com
ELECTRONICALLY SERVED ON:
Alexander Spiro, Esq.
QUINN, EMANUEL, URQUHART & SULLIVAN, LLP
51 Madison Avenue, Twenty-Second Floor
New York, New York alexspiro@quinnemanuel.com
Attorney for Appellant Elon Musk
Attorney for Appellant Elon Musk
Clerk for the Honorable Julia Spain
SUPERIOR COURT OF CALIFORNIA
County of Alameda - Hayward Hall of Justice
24405 Amador Street
Hayward, California
Electronically served on the
SUPREME COURT OF CALIFORNIA,
per Rule 8.212(c)(2)
Trial Court
the number of
copies indicated above,
o
r
original and
original and
n
e
x
tb
u
s
i
n
e
s
sd
a
yd
e
l
i
ve
r
y
/s/ Kirstin Largent
ELECTRONICALLY FILED ON THE
CALIFORNIA COURT OF APPEAL
First Appellate District, Division One,
per Court of Appeal Local Rule 16
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