Hothi v. Musk Document 25

California Court of Appeals
Case No. A162400
Filed September 3, 2021

Appellant's reply brief.: Defendant and Appellant: Elon Musk Attorney: Michael Timothy Lifrak

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Page 1 No. AIN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT, DIVISION ONE
RANDEEP HOTHI,
Plaintiff-Respondent,
v.
ELON MUSK
On Appeal from the Superior Court for the County of Alameda
Hon. Julia Spain, Judge,
Case No. RGAPPELLANT’S REPLY BRIEF
ALEX SPIRO
(admitted pro hac vice)
QUINN EMANUEL URQUHART
& SULLIVAN, LLP
51 Madison Avenue, 22nd Floor
New York, NY Telephone: (212) 849-Facsimile: (212) 849-alexspiro@quinnemanuel.com
MICHAEL T. LIFRAK
(S.B. No. 210846)
JEANINE ZALDUENDO
(S.B. No. 243374)
QUINN EMANUEL URQUHART
& SULLIVAN, LLP
865 S. Figueroa Street, 10th Fl.
Los Angeles, CA Telephone: (213) 443-Facsimile: (212) 443-michaellifrak@quinnemanuel.com
Counsel for Defendant-Appellant Elon Musk

Document received by the CA 1st District Court of Appeal.
Defendant-Appellant.
Page 2 TABLE OF CONTENTS
Page
INTRODUCTION ....................................................................................... ARGUMENT ............................................................................................. MUSK’S STATEMENTS WERE PROTECTED SPEECH. ........ A.
II.
Musk’s Statements Related to Issues of Public
Interest.................................................................................. 1.
Musk Identified Numerous Issues of Public
Interest. .....................................................................
2.
Musk’s Statements Directly Related to the
Matters of Public Interest. ......................................
B.
Musk’s Statements Related to Hothi’s Threatened
Case. .....................................................................................
C.
Musk’s Statements Related to the Ongoing
Harassment Case. ...............................................................
HOTHI DID NOT DEMONSTRATE A PROBABILITY
OF PREVAILING ON FALSITY OR MALICE. ......................... A.
B.
Hothi Did Not Establish Falsity. ...................................... 1.
Statement
that
Hothi
“Harassed”
Employees. ...............................................................
2.
Statement that Hothi Sideswiped Tesla
Employee. .................................................................
3.
Statements About Hothi’s Sideswipe. ..................
4.
Hothi’s Repeated Reference to the
Harassment Action Are Irrelevant and
Misleading. ...............................................................
Hothi Did Not Establish Malice. ...................................... 1.
Hothi Does Not Dispute the Constitutional
Framework. ..............................................................
Document received by the CA 1st District Court of Appeal.
I.
Page 3 Hothi Concedes the Public Controversies
Identified by Musk. .................................................
3.
Hothi
Inserted
Himself
Into
the
Controversies. ..........................................................
4.
Musk’s Statements Were Germane to the
Controversies. ..........................................................
5.
Hothi’s Germaneness Arguments Are
Meritless....................................................................
6.
Hothi Misstates the Showing Required for
Actual Malice. ..........................................................
7.
The Trial Court Erred by Finding Malice
Based Solely on Musk’s Alleged Dislike of
Hothi..........................................................................
III.
MUSK DID NOT WAIVE ANY ARGUMENTS........................
IV.
THE COURT SHOULD AWARD MUSK FEES. .......................
CONCLUSION .........................................................................................
Document received by the CA 1st District Court of Appeal.
2.
Page 4 TABLE OF AUTHORITIES
Page(s)
CASES
1-800 Contacts, Inc. v. Steinberg
(2003) 107 Cal.App.4th 568 .......................................................... Annette F. v. Sharon S.
(2004) 119 Cal.App.4th 1146 ................................ 32, 57, 61, 64, Baker v. Los Angeles Herald Examiner
(1986) 42 Cal.3d 254 ................................................................ 33, Balzaga v. Fox New Network LLC
(2009) 173 Cal.App.4th 1325 ........................................................
Bently Reserve L.P. v. Papaliolios
(2013) 218 Cal.App.4th 418 .......................................................... Beilenson v. Superior Court
(1996) 44 Cal.App.4th 944 ............................................................ Bose Corp. v. Consumers Union of U.S.
(1984) Inc., 466 U.S. 485 ................................................................ Briggs v. Eden Council for Hope & Opportunity
(1999) 19 Cal.4th 1106 ................................................................... Cal. Pub. Emp. Ret. System v. Moody’s Inv’rs Serv., Inc.
(2014) 226 Cal.App.4th 643 .......................................................... Canaday v. Peoples-Perry
(N.D. Cal. Dec. 15, 2017) 2017 WL 6405618............................... Carver v. Bonds
(2005) 135 Cal.App.4th 328 .................................................... 43, Christian Research Inst. v. Alnor
(2007) 148 Cal.App.4th 71 ...................................................... 65, Church of Scientology v. Wollersheim
(1996) 42 Cal.App.4th 628 ............................................................ Coll. Hosp. Inc. v. Superior Ct.
(1994) 8 Cal.4th 704 ....................................................................... ComputerXpress, Inc. v. Jackson
((2001) 93 Cal.App.4th 993 ..........................................................
Document received by the CA 1st District Court of Appeal.
Barker v. Garza
(2013) 218 Cal.App.4th 1449 ........................................................ 71
Page 5 Commonwealth Energy Corp. v. Inv. Data Exch., Inc.,
(2003) 110 Cal.App.4th 26 ............................................................ Conroy v. Spitzer,
(1999) 70 Cal.App.4th 1446 ............................................................ Copp v. Paxton,
(1996) 45 Cal.App.4th 829 ................................................ 53, 56, Evans v. Centerstone Dev. Co.
(2005) 134 Cal.App.4th 151 .......................................................... Film On.com Inc. v. DoubleVerify Inc.
(2019) 7 Cal.5th 133 ............. 9, 10, 18, 20, 22, 23, 24, 25, 26, 69, Gilbert v. Sykes
(2007) 147 Cal.App.4th 13 ...................................................... 37, Greenbelt Pub. Assn. v. Bresler
(1970) 398 U.S. 6 ...................................................................... 34,
Hewlett-Packard Co. v. Oracle Corp.,
(2015) 239 Cal.App.4th 1174 .................................................. 72, Hoang v. Tran
(2021) 60 Cal.App.5th 513 ............................................................ Hothi, Bently Reserve L.P. v. Papaliolios
(2013) 218 Cal.App.4th 418 .......................................................... In re Zeth S.
(2003) 31 Cal.4th 396 ..................................................................... Jackson v. Paramount Pictures Corp.
(1998) 68 Cal.App.4th 10 ........................................................ 43, Jankovic v. International Crisis Group,
(2016) 822 F.3d 576 ........................................................................ Letter Carriers v. Austin
(1974) 418 U.S. 264 ........................................................................ Makaeff v. Trump Univ., LLC
(9th Cir. 2013) 715 F.3d 254 ......................................................... McGarry v. Univ. of San Diego
(2007) 154 Cal.App.4th 97 ...................................................... 64, Morningstar, Inc. v. Superior Court
(1994) 23 Cal.App.4th 676 ............................................................
Document received by the CA 1st District Court of Appeal.
Grenier v. Taylor,
234 Cal.App.4th at p. 485 ............................................................. 5
Page 6 Morrow v. Los Angeles Unified Sch. Dist.
(2007) 149 Cal.App.4th 1424 ........................................................ Moyer v. Amador Valley J. Union High Sch. Dist.
(1990) 225 Cal.App.3d 720 ........................................................... Murray v. Tran
(2020) 55 Cal.App.5th 10 .................................................. 25, 26, Nadel v. Regents of University of California,
(1994) 28 Cal.App.4th 1251 .................................................... 54, Neville v. Chudacoff
(2008) 160 Cal.App.4th 1255 .................................................. 29, Nygård, Inc. v. Uusi-Kerttua
(2008) 159 Cal.App.4th 1027 ........................................................ Okun v. Superior Court
(1981) 29 Cal.3d 442 ......................................................................
Reader's Digest Assn. v. Superior Court,
(1984) 37 Cal.3d 244........................................................... 59, 60, Rearden LLC v. Rearden Commerce, Inc.
(N.D. Cal. 2009) 597 F.Supp.2d 1006 .......................................... Rosenaur v. Scherer
(2001) 88 Cal.App.4th 260 ................................................ 38, 39, Ruiz v. Harbor View Cmty. Ass’n
(2006) 134 Cal.App.4th 1456 .................................................. 38, Standing Comm. v. Yagman
(9th Cir. 1995) 55 F.3d 1430 ......................................................... Stolz v. KSFM 102 FM
(1994) 30 Cal.App.4th 195 ............................................................ Sweetwater Union High Sch. Dist. v. Gilbane Bldg. Co.
(2019) 6 Cal.5th 931 ....................................................................... Terry v. Davis Community Church
(2005) 131 Cal.App.4th 1534 ........................................................ Unsworth v. Musk
(C.D. Cal. Nov. 18, 2019) 2019 WL 8220721 ........................ 58, Waldbaum v. Fairchild Publications, Inc.,
(1980) 627 F.2d 1287......... ........................................... 54, 57, 58,
Document received by the CA 1st District Court of Appeal.
People ex rel. Lockyer v. Brar
(2004) 115 Cal.App.4th 1315 ........................................................ 73
Page 7 Wilcox v. Superior Court
(1994) 27 Cal.App.4th 809 ............................................................ Wilson v. CNN
(2019) 7 Cal.5th 871 ................................................................. 27, Wilson v. Parker, Covert & Chidester
(2002) 28 Cal.4th 811 ..................................................................... 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 .................................................. 20, Yang v. Tenet Healthcare, Inc.
(2020) 48 Cal.App.5th 939 ................................................ 18, 19, Young v. CBS Broad., Inc.
(2012) 212 Cal.App.4th 551 .................................................... 61,
Code of Civ. Proc., § 425.16 ......................................................... 25, 26, Code of Civ. Proc., § 425.16(e)(2) .......................................... 16, 29, 30, Code of Civ. Proc., § 425.16(e)(4) ............................................................ Evid. Code, § 1552 .................................................................................... Evid. Code, § 1553 ....................................................................................
Document received by the CA 1st District Court of Appeal.
STATUTORY AUTHORITIES
Page 8 INTRODUCTION
For
(“Hothi”)
three
years,
publicly
Plaintiff/Respondent
criticized
Tesla
Defendant/Appellant Elon Musk (“Musk”).
(“RB”) at 13-15.)
Randeep
and
its
Hothi
CEO,
(Respondent’s Brief
As part of his campaign, he planted hidden
cameras on Tesla property, took pictures and videos of Tesla
employees, followed Tesla employees on the road, trespassed at the
and struck a security officer with his car as he fled (according to
numerous sworn statements by the officer), all while posting his
“findings” on Twitter as he (in his own words) “came to
prominence” as a Tesla critic. (Id. at 13-19.)
Having entered the public fray and taken it upon himself to
harm Tesla through illegitimate conduct, Hothi cannot maintain a
valid lawsuit based solely on Musk pointing out what Hothi had
done.
It would fundamentally unfair to allow Hothi to publish
purported facts about Tesla while exposing Musk to a lawsuit just
for responding. Musk’s statements about Hothi’s actions are no less
protected by the First Amendment than Hothi’s own statements

Document received by the CA 1st District Court of Appeal.
Tesla factory on numerous occasions, was caught on Tesla property,
Page 9 about Tesla and Musk. Musk’s statements were accurate and based
on facts. And Musk believed them to be true. Those simple facts
mandate that the trial court’s order be vacated, and nothing in
Respondent’s brief changes that.
Musk satisfied the first prong of the anti-SLAPP inquiry by
showing that his statements were protected by the First Amendment
on several independent bases. (AOB at 28-37; see, infra, Section I.)
Hothi’s scattershot arguments in response do not have merit.
Among other things:

Hothi misstates the correct inquiry by arguing that his
alleged harassment of Tesla employees and striking one
of them are not “topics of public interest.” (RB at 24.)
However, the relevant question is whether the
challenged statements “contribute to,” “participate in,”
or “further” a public conversation on a topic of public
interest. (Film On.com Inc. v. DoubleVerify Inc. (2019) Cal.5th 133, 152.)
Here, Musk’s statements directly

Document received by the CA 1st District Court of Appeal.
First, his statements related to several issues of public interest.
Page 10 refuted the accuracy, reliability, and propriety of
Hothi’s “investigations” of Tesla’s manufacturing and
technology, which Hothi publicly trumpeted. (See AOB
at 28-37; see, infra, Section I(A).) They also related to
Musk’s alleged mistreatment of Tesla’s critics and the
actions of the high-profile $TSLAQ group, each of
which is a matter of public interest by Hothi’s own
public controversies].) Indeed, all of these subjects are
expressly addressed in the very emails Hothi claims are
defamatory. (Ibid.)

Hothi asserts that there was no connection to a “public
issue” because Musk’s statements were “made in a
private, one-to-one email” to Mr. Greenspan as part of a
“private sniping match.”
(RB at 25, 28.)
But this
ignores his own allegations, which are that “Musk knew
or should have known his accusations concerning Hothi
would be conveyed to a worldwide audience and

Document received by the CA 1st District Court of Appeal.
admission. (Ibid.; see also id. at Section I(A) [discussing
Page 11 would result in the accusations receiving significant
publicity.”
(1 AA 15 at ¶ 35.)
It also ignores the
applicable law, which makes clear that even private
communications
are
protected
under
these
circumstances. (AOB at 28; see, infra, Section I(A)(2).)

Hothi argues that he cannot be connected to the
$TSLAQ group and its public attacks of Tesla and Musk
contention he repeats twice. (RB at 43, 16 n.5.) But
Hothi has previously admitted the exact opposite,
stating under oath that “I am a member of the so-called
$TSLAQ…” (2 AA 165 [emphasis added].)

Hothi
dramatically
asserts
that
granting
First
Amendment protection to Musk’s statements would
“give both Musk and Tesla complete immunity to
defame anyone at any time on any topic.” (RB at 25.)
However, Musk’s email was not about Hothi’s personal
life or unrelated conduct.

It was related to Hothi’s
Document received by the CA 1st District Court of Appeal.
because “$TSLAQ . . . does not have members,” a
Page 12 actions in connection with topics of public interest, into
which Hothi voluntarily injected himself.
The First
Amendment protects that. (See AOB at Section I; see,
infra, Section I(A)(2).)
Second, Musk’s email was independently protected because it
related to a threatened lawsuit. (AOB at 37-39, 41-42.) Hothi does
not dispute that such statements are protected. Instead, he asserts
preservation letter.” (RB at 17, 32.) But Hothi ignores the fact that
the letter expressly stated that “we intend to file a civil action for
malicious prosecution,” bringing Musk’s related statements under
First Amendment protection. (1 AA 141-42; see, infra, Section I(B).)
Hothi’s only other response is the untenable position that the
statement by his lawyer (who also represents him in this appeal)
was illegitimate because the threatened claim was legally infirm.
(RB at 32.) That is not a valid excuse, and Hothi cites no authority
saying it is. (See, infra, Section I(B).)
Third, the email was also protected because it was related to a

Document received by the CA 1st District Court of Appeal.
that the letter sent by his counsel was only an “evidence
Page 13 pending case—Tesla’s harassment case against Hothi. Hothi asserts
that the case was not actually pending, but the facts say otherwise.
The case had not been closed, and the parties litigated it for months
before and after Musk’s email. (See AOB at 37-41; see, infra, Section
I(C).)
On the merits, Hothi must establish a likelihood of success on
both falsity and malice. He did neither. As to the former, Hothi
employees when he does not dispute planting cameras to take
photos and videos of Tesla employees, following them on the road,
showing up uninvited at their workplace, and barraging them with
questions both in person and on the phone. Instead, Hothi makes
the
argument
that
he
never
committed
the
crime
of
harassment/stalking, which has no bearing, given that Musk never
accused him of doing so. (See, infra, Section II(A)(1).)
As to the assertion that Hothi sideswiped a Tesla employee,
the struck employee swore under oath that it happened and
reported it immediately to police, and Hothi has not pointed to any

Document received by the CA 1st District Court of Appeal.
cannot seriously contend that it is “false” to say he “harassed” Tesla
Page 14 contrary evidence. Moreover, Hothi ignores the full context of the
email exchange on which he sues, which makes clear the basis for
Musk’s statement (the report of the security guard). (See AOB at 4849; see, infra, Section II(A)(2).)
Hothi’s argument regarding Musk’s statement that “Hothi []
almost killed Tesla employees” because the sideswipe “could easily
have been a death with 6 inches of difference,”(1 AA 78), again
basis for finding falsity was that Musk used the plural “employees”
when it was only one employee who was allegedly sideswiped.
Such quibbling is legally irrelevant, but in any event, Musk’s own
email makes it clear that “Hothi hit one of our people,” and Mr.
Greenspan’s email said the same thing. (1 AA 77, 79 [emphasis
added].) Moreover, Musk’s statements about Hothi’s actions were
clearly not statements of literal fact but opinion, and were based on
fully-disclosed facts.
Any reader would have also seen Mr.
Greenspan’s statements that Hothi was driving slowly, that “[n]o
one was even hurt,” and that Musk’s comment was a truism because

Document received by the CA 1st District Court of Appeal.
focuses on a single phrase out of context. The lower court’s sole
Page 15 “[a]ny one of your vehicles could kill someone with 6 inches of
difference.” (1 AA 79.)Finally, Hothi makes the incorrect statement that he was “not
required to establish malice to overcome Musk’s anti-SLAPP
motion.”
(RB at 48.)
Malice is an essential element of Hothi’s
defamation claim, and he had the burden of showing that he could
prove at trial (with clear and convincing evidence) that Musk knew
But the sole two pieces of evidence cited by Hothi and relied on by
the lower court were of Musk’s purported “ill will” towards Hothi
(based on a derogatory statement by counsel in the anti-SLAPP brief
Hothi engages in misdirection by focusing on the “Roadway
Incident,” to argue that Musk has not adduced evidence thereon.
(RB at 14-15.) But Musk says nothing about the “Roadway Incident”
in the challenged email, and he declared that he was discussing only
the “Sideswipe Incident” when referring to Hothi putting people in
danger. (1 AA 70.) And even if he was not, the undisputed
evidence demonstrates that Hothi’s actions in the Roadway Incident
were dangerous. (RB at 14-15; 2 AA 233; see, infra, Section II(A)(3).)
Hothi concedes that he injected himself into a public debate
about Tesla, leaving him to argue only that Musk’s comments were
not germane to the dispute. But as with the similar first prong of the
anti-SLAPP test (a statement related to an issue of public interest),
Hothi is incorrect. (See, infra, Section II(B)(3)-(5).)

Document received by the CA 1st District Court of Appeal.
his statements were false or had reckless disregard for the truth.2
Page 16 and a meme that Musk published on Twitter without any
connection to Hothi). As a matter of clear law, that cannot satisfy
Hothi’s high burden. The trial court made a clear error of law when
it held otherwise. (See, infra, Section II(B)(6)-(7).)
Musk’s statements were protected by the First Amendment in
numerous ways, and Hothi did not establish a probability of success.
The trial court’s findings to the contrary should be vacated, and this
motion.
ARGUMENT
I.
MUSK’S STATEMENTS WERE PROTECTED SPEECH.
Musk’s statements were protected because they were made
“in connection with … an issue of public interest” and were also
related to “an issue under consideration or review by a . . .judicial
body.” (Code of Civ. Proc. § 425.16(e)(2), (4).) If Musk’s email
satisfies either of these standards, the Court moves on to the second
part of the anti-SLAPP analysis (i.e., whether Hothi has met his
burden of demonstrating a probability of success). (Ibid.; AOB at 56.)

Document received by the CA 1st District Court of Appeal.
matter remanded with instructions to grant Musk’s anti-SLAPP
Page 17 A.
Musk’s Statements Related to Issues of Public
Interest.
In arguing against First Amendment protection, Hothi
misconstrues the applicable law, ignores the numerous issues of
public interest related to Musk’s statements, and ignores the
functional relationship between Musk’s statements and the issues of
public interest.
described the two-step process for determining whether speech is in
connection with a matter of public interest: “First, we ask what
‘public issue or issue of public interest’ the speech in question
implicates—a question we answer by looking to the content of the
speech. Second, we ask what functional relationship exists between
he speech and the public conversation about some matter of public
interest.” (FilmOn.com Inc., supra, 7 Cal.5th at pp. 149-50.)

Document received by the CA 1st District Court of Appeal.
In FilmOn.com Inc. v. DoubleVerify Inc., the Supreme Court
Page 18 1.
Musk Identified Numerous Issues of Public
Interest.
The first step of the FilmOn analysis is simply an identification
of valid issues of public interest, not an assessment of whether there
is a sufficient nexus between the challenged statement and issue
(that is the second step).
(Ibid.)
For this reason, defendants
“virtually always” meet their burden under the first prong of the
might “implicate.” (Id. at pp. 150, 152.)
Musk has met that burden by identifying issues of public
interest that his speech implicates. (See AOB at 28-37.) Hothi has
never contested that information about public companies and
prominent businesspeople are “issues of public interest” or that
Tesla and Musk belong to those categories, nor can he. (See Cal. Pub.
Emp. Ret. System v. Moody’s Inv’rs Serv., Inc. (2014) 226 Cal.App.4th
643, 660; Nygård, Inc. v. Uusi-Kerttua (2008) 159 Cal.App.4th 1027,
1039.) Nor does Hothi dispute that Tesla’s automation technology,
its production rates, Tesla’s treatment of its critics, or the actions of

Document received by the CA 1st District Court of Appeal.
FilmOn test by identifying issues of public interest their speech
Page 19 the $TSLAQ community are specifically matters of public interest.
(See RB at 24-25; see also RB at 42 [admitting “Tesla’s history of
intimidating its critics may be an issue of public debate”]; RB at [admitting public debate about “Tesla’s production rates and its
claims about its technology”].)
The emails between Musk and Mr. Greenspan expressly refer
to these matters of public interest.
They discuss, among other
and the readiness of its autopilot technology, as well as how the
Tesla “organization has treated” critics including Hothi and people
who have made “statements about Tesla to support [their] short
position [of Tesla stock].” (1 AA 73-83.) The email on which Hothi
sues is in the middle of this back-and-forth discussion between
Musk and Mr. Greenspan. (1 AA 77.) Far from being an ad hominem,
out-of-the-blue attack on Hothi, Musk specifically responds to Mr.

Document received by the CA 1st District Court of Appeal.
things, Hothi’s public statements regarding Tesla’s “factory output”
Page 20 Greenspan’s comments regarding Tesla’s safety record and Hothi’s
actions. (Ibid.)In his response on appeal, Hothi engages in misdirection. He
first creates a straw man by arguing that “Hothi’s alleged
harassment, contact with a Tesla employee, or near killing of Tesla
employees are [not] topics of public interest.” (RB at 24.)
But as
described above, those are not the issues of public interest that have
between Musk and Mr. Greenspan.
Next, Hothi cites a series of cases that predate FilmOn, have
nothing to do with the first step of the Film On analysis, and support
Musk’s position anyway. For example, in World Financial Group, (RB
Ironically, and despite his baseless criticism of Musk for
“assassinating Hothi’s character” through ad hominem attacks (RB at
29), Hothi’s brief is itself replete with ad hominem attacks against
Musk. With no factual basis for making these allegations, Hothi
urges this Court to “be mindful that Musk is famously a
micromanager,” (RB at 40), states that Musk is a “serial fabulist,
[who] cannot dispute his status as a ‘reckless man,’” (RB at 50),
falsely states that Musk “wields autocratic control over Tesla” (RB at
38), and asserts (falsely) that “Musk is a serial liar.” (RB at 52.)
These statements are not only untrue and unsupported by record
evidence, they are irrelevant to the issue on appeal.

Document received by the CA 1st District Court of Appeal.
been identified by Musk, nor were they the focus of the emails
Page 21 at 24), the statements at issue were made to a small group of
employees and customers, which the court contrasted with a
situation like the one here—“where the statement or conduct at issue
(1) was about a person or entity in the public eye (2) involved
conduct that could affect large numbers of people beyond the direct
participants or (3) involved a topic of widespread public interest.”
(World Financial Group, Inc. v. HBW Ins. & Financial Services, Inc.
2.
Musk’s Statements Directly Related to the
Matters of Public Interest.
Hothi acknowledges that if Musk has identified issues of
public interest, like defendants “virtually always” do, then the
Similarly, Hothi cites Commonwealth Energy Corp. v. Inv.
Data Exch., Inc., for the proposition that ”Musk resorts to the oftrejected, so-called ‘synecdoche theory of public issue in the antiSLAPP statute,’ where ‘[t]he part [is considered] synonymous with
the greater whole.’” (RB at 24 [citing (2003) 110 Cal.App.4th 26].)
Commonwealth Energy involved a telemarketing scheme and the
court determined that “hawking an investigatory service is not an
economics lecture on the importance of information for efficient
markets.” (110 Cal.App.4th at p. 34.) That has no relevance to the
speech at issue here, which was unquestionably addressed issues
that are of interest to the public.

Document received by the CA 1st District Court of Appeal.
(2009) 172 Cal.App.4th 1561, 1570.)4
Page 22 question is whether Musk’s statements bear a functional relationship
to those issues. (FilmOn.com Inc., supra, 7 Cal.5th at pp. 149-50; RB at
26.)
Musk’s speech furthered discourse of several issues of public
interest:
(1) Musk’s statements contributed to a public conversation
regarding Tesla’s manufacturing and technology. Hothi began that
manufacturing and technology; Musk’s email relates to Hothi’s
unreliable and improper methods for obtaining his “information”
about those issues. (AOB at 35);
(2) Musk’s speech also related directly to the issue of Tesla’s
and Musk’s treatment of their critics. Musk responded to a direct
accusation by Mr. Greenspan to explain that Tesla was not
mistreating its critics and, to the contrary, it was Hothi who was
engaging in bad behavior. (AOB at 36); and
(3) Musk’s speech related directly to the $TSLAQ community,
a group (of which Hothi is an admitted member), which has

Document received by the CA 1st District Court of Appeal.
very public debate by making numerous public claims about Tesla’s
Page 23 generated and received significant publicity regarding their mission
to see the bankruptcy of Tesla. (See AOB at 36-37; 1 AA 125.)
The court in FilmOn made clear that in determining whether
Musk’s speech bears a functional relationship to the issues of public
interest, this Court should consider audience, speaker, and purpose.
(FilmOn.com Inc., supra, 7 Cal.5th at p. 152.) Here, all three factors
demonstrate that Musk’s speech should be protected and are
Factor
Audience
Speaker
FilmOn Defendant
Musk
Paying clients
receiving defendants’
reports about
websites, with
obligation to keep
the information
confidential. The
reports “never
entered the public
sphere.”
(FilmOn.com Inc.,
supra, 7 Cal.5th at pp.
141, 152.)
Private company that
produces
confidential reports
for paying
clients about the
Owner of website
that posts
information about
Tesla to the public
(who then published
his exchange with
Musk to the world).
According to Hothi,
Musk should have
known his email
would receive
worldwide attention.
(1 AA 139.)
World-famous CEO
of public
company who
receives
worldwide, daily

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contrary to the circumstances in FilmOn:
Page 24 content/safety of
various websites.
(FilmOn.com Inc.,
supra, 7 Cal.5th at pp.
140-41.)
To provide
confidential
information to clients
so they can make
decisions about
where to place ads.
(FilmOn.com Inc.,
supra, 7 Cal.5th at pp.
140-41.)
Purpose
media
attention. (See 7 AA
620.)
To counter
allegations that
Tesla and Musk had
misled the public
about its technology
and that Tesla
mistreats those who
criticize the it. (1 AA
73-77.)
Hothi’s arguments to the contrary are again misguided:
First, Hothi argues that there is no “functional relationship”
between Musk’s statements and a public issue because they were
“made in a private, one-to-one email” as part of a “private sniping
match” that was “privately directed to an audience of one.” (RB at
25, 27-28.)
However, Mr. Greenspan maintains a website that
regularly posts publicly about and criticizes Tesla, and which
purports to make “huge volumes of data accessible to the public free
of charge” and to let “ordinary citizens impact the law-making
process.” (1 AA 139.) Moreover, Hothi’s entire case is based on the

Document received by the CA 1st District Court of Appeal.
(See also AOB at 34.)
Page 25 allegation that “Musk knew or should have known his accusations
concerning Hothi would be conveyed to a worldwide audience and
would result in the accusations receiving significant publicity.” (AA 15 at ¶ 35.)
Even apart from this, the fact that Musk’s email was sent only
to Mr. Greenspan simply does not matter. (RB at 25.) The court in
FilmOn stated explicitly that “[w]e have declined to hold that section
individuals.” (FilmOn.com Inc., supra, 7 Cal.5th at p. 146.) Thus,
even if Musk and Mr. Greenspan were simply engaged in a fully
private conversation, Hothi’s argument would be incorrect. (See also
Murray v. Tran (2020) 55 Cal.App.5th 10, 35 [private conversation
between two dentists about the skills of another dentist was
protected because the listener had a “direct connection” to the
patient population]; Morrow v. Los Angeles Unified Sch. Dist. (2007)
149 Cal.App.4th 1424, 1437 [conversation with reporter protected];
Terry v. Davis Community Church (2005) 131 Cal.App.4th 1534,
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425.16 does not apply to events that transpire between private
Page 26 [“Section 425.16, therefore, governs even private communications, so
long as they concern a public issue.”].)
Second, Hothi is wrong that protected speech must directly
“refut[e] statements Hothi previously made.” (RB at 29.) This is not
the standard, and Hothi does not cite any law for this proposition.
The correct standard is whether the challenged statements
“contribute to,” “participate in,” or “further” a public conversation
p. 152.) As described above and in his Opening Brief, Musk has met
that standard.
Third, the other cases Hothi cites in arguing that Musk’s
speech does not functionally relate to issues of public interest
actually demonstrate the opposite:

Hothi cites Murray v. Tran (2020) 55 Cal.App.5th 10, 31,
(RB at 26, 28-29), which held that emails stating a
dentist’s “standard of work was below par” were
“about an issue of public interest (the quality of dental
care at Bird Rock Dental)” but did not “further[] or

Document received by the CA 1st District Court of Appeal.
on a topic of public interest. (Film On.com Inc., supra, 7 Cal.5th at
Page 27 contribute[] to a public conversation or discussion on
this issue” because there was “no allegation or evidence
that any member of the public received these emails
[and] [t]he emails were sent only to a limited number of
persons within Dr. Tran's business entities.” (Murray,
55 Cal.App.5th at p. 31 [emphasis added].) As an initial
matter, if the quality of dental care at a small dental
statements that implicate a debate over Tesla’s business
operations most certainly are. Moreover, Musk sent his
email to a third party, who then published them to the
world.

Hothi also misrepresents the import of Wilson v. CNN
(2019) 7 Cal.5th 871, 899-903. (RB at 29.) In that case,
CNN told a prospective employer that the plaintiff had
plagiarized a story. The court found that “not every
employment dispute . . . is a matter of public
significance,” but also stated that “[c]ertainly some

Document received by the CA 1st District Court of Appeal.
office is an issue of public interest, then Musk’s
Page 28 individuals may be so prominent, or in such a
prominent position, that any discussion of them
concerns a matter of public interest.” (Wilson, supra, Cal.5th at p. 901 .) Musk, Tesla, and Hothi’s repeated
public criticism of Musk and Tesla, obviously fall into
the latter category.
Hothi’s description of Yang v. Tenet Healthcare, Inc.
misleading. In that case, the court determined that the
anti-SLAPP statute
did apply because “given the
audience and nature of defendants' statements” there
was a functional relationship between the speech and
an issue of public interest. This was because (1) “the
defamatory statements were communicated to the
The court also determined that the speech was not “about”
the broad topic of “journalistic ethics,” (ibid.), but as noted in Section
I(A), supra, Musk is not arguing that his speech relates to any broad
categories, but rather to specific issues of public interest such as
Tesla’s treatment of its critics and Tesla’s manufacturing and
production.

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(2020) 48 Cal.App.5th 939, 948, (RB at 30), is even more
Page 29 public, not just to discrete doctors or hospital staff
members,” and (2) the speech about the plaintiff’s
qualifications to practice medicine “contribut[ed] to a
debate on a public issue” of whether to refer patients to
the plaintiff.
(Yang, 48 Cal.App.5th at p. 949.) As in
Yang, Musk’s statements were made to a third party
and “directly contributes to the discourse” on the issues
the $TSLAQ offensive against Tesla (including Hothi’s
participation therein). (Ibid.)
B.
Musk’s Statements Related to Hothi’s Threatened
Case.
The anti-SLAPP statute protects statements that relate to an
issue
under
consideration
or
review
by
a
judicial
body,
independently of whether such speech relates to a matter of public
interest. (Cal. Code Civ. Proc. § 425.16(e)(2); Briggs v. Eden Council
for Hope & Opportunity (1999) 19 Cal.4th 1106, 1116.) This protection
extends to statements about threatened, not-yet-filed litigation. (See,

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of Tesla’s production, Tesla’s treatment of its critics, and
Page 30 e.g., Neville v. Chudacoff (2008) 160 Cal.App.4th 1255, 1261; Canaday v.
Peoples-Perry (N.D. Cal. Dec. 15, 2017) 2017 WL 6405618, at *[“threat of litigation” enough to qualify for anti-SLAPP protection].)
Hothi meekly asserts that the letter was nothing more than an
“evidence preservation letter.” (RB at 17.) But Hothi specifically
threatened a malicious prosecution lawsuit against Tesla in the letter
on July 19, 2019—before Musk’s emails to Mr. Greenspan. (1 AA
The law is clear that Musk’s statements related to the threatened
lawsuit are protected. (AOB at 37-39.)
The threatened malicious prosecution lawsuit was based
entirely on Tesla’s restraining order litigation (which was based on
Hothi’s harassment, sideswiping of a Tesla employee, and other
actions). (1 AA 141-42.) Thus, the topics of Musk’s email and the
threatened malicious prosecution litigation were identical. Musk’s
statements are therefore protected by the anti-SLAPP statute. (See
Cal. Code. Civ. Proc. 425.16(e)(2); Neville, supra, 160 Cal.App.4th at p.
1266.)

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141-42 [“we intend to file a civil action for malicious prosecution”].)
Page 31 In an ironic argument, Hothi insists that his own threatened
lawsuit was not “impending” because “as a matter of law [it] could
never be filed.” (RB at 32.) Hothi appears to be admitting that, if he
had actually filed the malicious prosecution claim, it would have
been a frivolous lawsuit. Hothi cites no precedent for the notion that
threatening a bogus lawsuit is an exception to the general rule that
statements about threatened litigation are protected. Nor can he
to file a civil action for malicious prosecution”—and that those
threats were existent at the time of the challenged statements. (1 AA
141-42.)
C.
Musk’s Statements Related to the Ongoing
Harassment Case.
Finally, Musk’s statements related directly to Tesla’s thenongoing harassment case against Hothi.
The arguments Hothi
makes about Tesla’s litigation decisions in that case (including its
decision to not produce sensitive audio and video about its autopilot
technology) are irrelevant—the actual relevant facts are that Musk

Document received by the CA 1st District Court of Appeal.
change the fact that his own attorney wrote to Musk that “we intend
Page 32 sent his emails on August 7, 2019 (1 AA 77), that the case remained
ongoing until the court denied Hothi’s fee motion on October 28,
2019, (5 AA 401-02), and that the litigation related directly to the
same issues about which Musk wrote—i.e., Hothi’s repeated
harassment of Tesla employees, including the incident in which he
sideswiped a security officer. (2 AA 215-21.)
Hothi argues that the Annette F. case is distinguishable
related to the issues then being litigated and therefore fell squarely
within the speech contemplated by California’s anti-SLAPP statute.”
(RB at 31.) So too here. The issues being litigated at the time and
after Musk sent his emails were precisely the topics of the
challenged email. Specifically, in his attorneys’ fees motion, Hothi
argued that “Tesla and its CEO Elon Musk have a history of
silencing critics” and that Hothi had not engaged in “harassment” or
hit a Tesla security employee. (Compare 3 AA 283-88 with 1 AA 77;
see Annette F. v. Sharon S. (2004) 119 Cal.App.4th 1146, [statement was in connection with an issue under consideration by a

Document received by the CA 1st District Court of Appeal.
because there the “alleged defamatory statements were directly
Page 33 court because they were “directly at issue” in those proceedings].)
Consequently, Musk’s statements are protected under Section
425.16(e)(2).
II.
HOTHI DID NOT DEMONSTRATE A PROBABILITY OF
PREVAILING ON FALSITY OR MALICE.
A.
Hothi Did Not Establish Falsity.
As to each of Musk’s purportedly defamatory statements,
Hothi ignores the actual words used by Musk as well as the context
of the pages long dialogue between Musk and Mr. Greenspan. (1 A
73-83.) Taken in full context, it would be clear to the average reader
that Musk’s statements were either true or expressions of Musk’s
opinion, and therefore not actionable. (Baker v. Los Angeles Herald
Examiner (1986) 42 Cal.3d 254, 260-261.)
1.
Statement that Hothi “Harassed” Employees.
That Hothi harassed Tesla employees is true. Hothi attempts
to turn an ordinary reading of Musk’s statement on its head in order
to demonstrate its falsity. Hothi first insists that Musk asserted that

Document received by the CA 1st District Court of Appeal.
Hothi argues that they are false or imply false facts. In so arguing,
Page 34 Hothi committed the crime of harassment—to which Hothi swears
he engaged in no such criminal act. (RB at 34; 7 AA 642:11-21, 643:611 at ¶¶33-34, 37.) However Musk’s statement was far simpler, and
for that reason impossible for Hothi to deny.
In response to
Mr. Greenspan’s question regarding Tesla’s treatment of its critics,
Musk responded that Hothi (among others) actively harassed Tesla
employees: “As for the people you mention, below, they have
Even though a particular term like “harass” also has a
criminal meaning, such meaning is not assumed, especially where
the average reader would not view it as such.
(See, e.g., Letter
Carriers v. Austin (1974) 418 U.S. 264, 284-286 [“traitor” understood
to mean that plaintiffs' actions were reprehensible, not that plaintiffs
had committed treason]; Greenbelt Pub. Assn. v. Bresler (1970) U.S. 6, 13-14 [readers of allegation of “blackmail” would understand
it as merely “a vigorous epithet” used to describe unreasonable
negotiating position, not a crime].)

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actively harassed . . . Tesla employees.” (1 AA 77.)
Page 35 Hothi has provided no support, legal or factual, for his
assumption that the average reader would conclude that Musk
accused Hothi of the crime of stalking/harassment rather than that
Hothi harassed Tesla employees under the ordinary definition of
that word—i.e., that Hothi engaged in actions “to annoy
persistently” or to “create an unpleasant or hostile situation for
especially by uninvited and unwelcome . . . conduct.” (6 AA 548.)
Hothi has admitted and/or Musk has adduced undisputed evidence
showing:

Hothi made uninvited visits to the Tesla factory. (1 AA
59);

Hothi placed cameras on Tesla private property to take
pictures and videos of the factory and Tesla employees.
(1 AA 59; 7 AA 616-35);

Hothi tracked cars going in and out of the factory
parking lots. (7 AA 638:9-13 at ¶ 10);

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And it is clear that Hothi did engage in such conduct. For example,
Page 36
Hothi posted photos and videos online of Tesla’s
employee parking and logistics lots. (1 AA 59; 7 AA
638:9-13 at ¶ 10 );

Hothi hit a Tesla employee with his car on one
uninvited visit to Tesla’s parking lots, according to the
officer. (1 AA 60 ; 1 AA 85);

Hothi tried to speak with employees numerous times

Hothi made phone calls to Tesla sales centers to “gather
information.” (7 AA 642:11-17 at ¶ 33); and

Hothi trailed Tesla employees on the freeway, while
taking pictures and videos. (7 AA 642:23-643:11 at ¶ 3537.)
Hothi has no choice but to contort Musk’s statement into the
accusation of a crime, as only in that extreme could he plausibly
deny that he has harassed Tesla employees. But that is not what
Musk said.
Hothi has made no attempt to deny his harassing
actions towards Tesla, because he cannot.

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while visiting the factory. (7 AA 638:9-13 at ¶ 10);
Page 37 Musk’s statement that Hothi harassed Tesla employee’s is also
protected opinion based on true facts. Even ignoring the truth of
Musk’s statement, it was, at a minimum, Musk’s opinion, and is
therefore protected speech.
Hothi responds that a statement couched in terms of an
opinion can still be actionable where it implies a false assertion of
objective fact. (RB at 39.) That much is true, but Hothi has failed to
false facts Musk’s statement purportedly implied.6 Moreover, Hothi
has admitted virtually all of the factual underpinnings of Musk’s
statement, as noted above. As such, Hothi simply cannot meet his
burden of demonstrating that Musk implied a statement of “actual
fact[] about [Hothi]” that was “provably false.” (Gilbert v. Sykes
(2007) 147 Cal.App.4th 13, 27 [“rhetorical hyperbole, vigorous
Mr. Greenspan wrote, “[s]econd, the way your organization
has treated Anna Watson, Cristina Balan, Martin Tripp, Karl
Hansen, and Randeep Hothi—among others—is truly shameful, and
has exemplified anything but openness. Randeep was interested in
your factory output precisely because you weren’t being open at
all.” (1 AA 77.)

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make any showing either here or in the underlying briefing of what
Page 38 epithet[s], lusty and imaginative expressions of contempt, and
language used in a loose, figurative sense have all been accorded
constitutional protection”]; Rosenaur v. Scherer (2001) 88 Cal.App.4th
260, 280 [loose, figurative, or hyperbolic language is constitutionally
protected].)
Hothi’s efforts to distinguish the cases previously cited by
Musk do not change any of this. Hothi dismisses Ruiz v. Harbor View
specifically address the defendant’s statement that plaintiff was
“harassing” a board. (RB at 37.) That is not correct, as the Court
made clear that “the libelous portions of the [challenged letter] are
just the kind of rhetorical hyperbole, epithets and figurative
statements that are nonactionable.” (Ruiz, supra, 134 Cal.App.4th at
p. 1472.) Hothi points out that the court specifically addressed the
defendant’s statement that the plaintiff was “virtually stalking” the
board members, but that actually supports Musk here. The court
made clear that, like Musk’s use of the term “harassed,” the term
“virtually stalking” “cannot fairly be interpreted as an accusation of

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Cmty. Ass’n (2006) 134 Cal.App.4th 1456, because the court did not
Page 39 a crime, but taken in context, was a metaphor used to describe
Ruiz’s conduct at the board meetings.” (Id. at p. 1473.)
Hothi likewise claims that Rosenaur, supra, 88 Cal.App.4th “powerfully supports Hothi’s position.” (RB at 38.) However, in
that case, the court found that defendant calling the plaintiff a
“thief” and liar” constituted protected speech. (Rosenaur, supra, Cal.App.4th at p. 260.)
Hothi points out that the statements in
debate and were likely to be understood as an outburst rather than a
provably false factual assertion like a written statement in campaign
literature. (RB at 38.) He goes on to argue that Musk’s statements
were akin to the latter. (Ibid.) But Hothi’s comparison is inapt—
Musk’s conversational exchange with Mr. Greenspan is nothing like
formal campaign literature; it was in the context of an email
argument between Musk and Mr. Greenspan (what Hothi deems to
have been a “sniping match”). In any event, it does not matter
because any implied factual assertion here is true—Hothi does not
deny he took the actions on which Musk based his statement. And

Document received by the CA 1st District Court of Appeal.
Rosenaur were made in the context of a heated, in-person political
Page 40 as the numerous cases cited in Rosenaur make clear, such statements
are protected unless they imply an underlying factual assertion that
is false.2.
Statement
that
Hothi
Sideswiped
Tesla
Employee.
Hothi next argues that Musk’s statement that Hothi had
sideswiped a Tesla employee was false. (RB at 34, 38.) However,
(Rosenaur, supra, 88 Cal.App.4th at p. 279 [quoting Greenbelt
Pub. Assn. v. Bresler (1970) 398 U.S. 6, 13-14; characterizing a
developer's negotiating position as ‘blackmail’ was constitutionally
protected]; see also Morningstar, Inc. v. Superior Court (1994) Cal.App.4th 676 [granting demurrer where article with the title
“Lies, Damn Lies and Fund Advertisements,” protected as opinion];
Beilenson v. Superior Court (1996) 44 Cal.App.4th 944, 951-[assertion that candidate was “ripp[ing] off” the California taxpayer
was held “when taken in context with the other information
contained in the mailer [to be] rhetorical hyperbole” and not
defamatory]; Okun v. Superior Court (1981) 29 Cal.3d 442, [statement that the plaintiff “‘entered into a corrupt relationship’
with a councilman ‘was not a factual assertion of crime’ but implied
‘moral criticism of objectives and methods, not the occurrence of
bribery’”]; Moyer v. Amador Valley J. Union High Sch. Dist. (1990) Cal.App.3d 720, 726 [holding that term “terrorize” fell “within the
protectable category of rhetorical hyperbole—a word used in a
loose, figurative sense”].)

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Hothi did not meet his burden of demonstrating falsity.
Page 41 In the lower court, Tesla submitted a declaration from Tyler
James, the Tesla security officer, who swore under oath that Hothi’s
car hit his left knee as Hothi attempted to leave the Tesla factory
parking lot.
(1 AA 85.)
Hothi has submitted no evidence to
contradict this statement, but rather declares only that he “does not
believe” he struck Mr. James. (7 AA 640 at ¶ 24.) Instead, Hothi
continues to rely on alleged inconsistencies in an inadmissible police
James’ knee.” (7 AA 677.)8 As such, Hothi has not met his burden of
showing that Musk’s statement about Hothi sideswiping a Tesla
employee is provably false.
Moreover, Hothi ignores that the email exchange between
Musk
and
Mr.
Greenspan
provides
additional
information
Hothi cites to the police report in footnote 2 of his brief as
support for his claim that he exited the parking lot at slow rate of
speed (a topic not even addressed by Musk). (RB at 13-14.)
Although Judge Spain correctly excluded these hearsay documents,
their admission would not have helped Hothi in any event. For
example, the police report noted the video of the Parking Lot
Incident was inconclusive, that James reported his knee hurt, and
that Hothi lied about why he was in Tesla’s parking lot. (7 AA 677681.)

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report which, ironically, concludes that “Randeep’s vehicle struck
Page 42 confirming the sideswipe. (Baker, supra, 42 Cal.3d at pp. 260-[court must consider original context with respect to the totality of
the circumstances].) Along with Musk’s statement that Hothi
sideswiped a Tesla employee, Mr. Greenspan published additional
information, including that Musk’s basis for the assertion was the
report of the Tesla security guard. (1 AA 79.) Thus any reader of
these emails would not only have Musk’s statement but would also
3.
Statements About Hothi’s Sideswipe.
Musk’s statements that a sideswipe “could easily have been a
death with 6 inches of difference” and that Hothi “almost killed”
Tesla employees are protected opinions, based on the report that
Hothi sideswiped a Tesla officer while fleeing Tesla’s property. (1 A
69:25-70:12 [Musk Decl. ¶ 7].) Hothi’s arguments to the contrary
again miss the mark.
Hothi asserts that Musk falsely accused him of the crime of
assault with a deadly weapon, when Musk never said or implied
any such thing. (RB at 33.)

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understand the basis for it.
Page 43 First, Hothi only briefly tries to defend the lower court’s sole
basis for finding falsity—that the phrase “almost killed Tesla
employees,” was false on its face because only one employee was
allegedly hit. (RB at 35-36.) However, Musk’s own words on the
next line of the email make it clear that Hothi “hit one of our
people.” (1 AA 77; [emphasis added].) This is also confirmed by
Mr. Geenspan who refers to “the person allegedly sideswiped,”
hyperbole. (1 AA 79; [emphasis added].)10 Regardless, even if taken
literally, such a minor factual inconsistency does not make a
statement defamatory. (Jackson v. Paramount Pictures Corp. (1998) Cal.App.4th 10, 26 (”Jackson”) [“[I]t is sufficient if the substance of
the [statement] be proved true, irrespective of slight inaccuracy in
the details. Minor inaccuracies do not amount to falsity so long as
the substance, the gist, the sting, of the libelous [statement] be
justified.”]; Carver v. Bonds (2005) 135 Cal.App.4th 328, 344-45 [“[A]
The full sentence reads: “As for the people you mention
below, they have actively harassed and, in the case of Hothi, almost

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providing any reader sufficient context to understand Musk’s use of
Page 44 statement is not considered false unless it would have a different
effect on the mind of the reader from that which the truth would
have produced.”].)Second, Hothi argues that even if opinions, Musk’s statements
imply provable false assertions of fact. (RB at 39.) However, anyone
reading Musk’s statement in the full context of the email exchange
and the further information it provided would understand that
Indeed, a reader of the published emails would understand that
Musk and Mr. Greenspan were engaged in a debate over Hothi’s
actions and would have sufficient information to form their own
opinion about what happened. (See Balzaga v. Fox New Network LLC
(2009) 173 Cal.App.4th 1325, 1338.
[“In reviewing an alleged
defamatory meaning, the context in which the statement was made
must be considered.
This contextual analysis demands that the
killed Tesla employees.” (1 AA 77.) The plural “employees” is
certainly accurate as to Hothi’s harassment, as described above.
Moreover, it is undisputed that there was another Tesla
employee in the immediate vicinity when Hothi struck James. (RB
at 36; 1 AA 85 [James Decl. p. 1].)

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Musk was not speaking literally or implying anything that was false.
Page 45 courts look at the nature and full content of the communication . . .
The publication in question must be considered in its entirety; it may
not be divided into segments and each portion treated as a separate
unit. It must be read as a whole in order to understand its import. . .
and construed in the light of the whole scope of the publication.”]
[internal quotations and citations omitted].)
Here, any reader would see that:
Musk’s opinions were based on the sworn statements of
an employee, who reported being struck. (1 AA 85.)
Mr. Greenspan contended that Hothi was driving
slowly. (1 AA 79.)

Mr. Greenspan stated that “[n]o one was even hurt.”
(Ibid.)
Because the underlying basis for Musk’s statements were
made clear, and Musk’s statements were factually true, Musk’s
statement is not actionable. (See, e.g., Standing Comm. v. Yagman (9th
Cir. 1995) 55 F.3d 1430, 1439 [“A statement of opinion based on fully
disclosed facts can be punished only if the stated facts are
themselves false and demeaning.”].)

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Page 46
Mr. Greenspan chided that Musk would “have to do
better than trying to pin an almost-but-not-even close
murder on [Hothi].” (Ibid.)

Musk’s statement was a truism, because, as Mr.
Greenspan pointed out, “[a]ny one of [Musk’s] vehicles
could kill someone with 6 inches of difference . . .”
(Ibid.)
conclude that Musk’s statements were anything other than an
opinion based on what was reported to him or that Hothi had
actually killed or caused serious injury to anyone. (Carver, supra, Cal.App.4th at p. 344 [“A statement is not defamatory unless it can
be reasonably be viewed as declaring or implying a provably false
assertion, and it is apparent from the context and tenor of the
The cases cited by Hothi, Bently Reserve L.P. v. Papaliolios
(2013) 218 Cal.App.4th 418, 426 and Wong v. Jing (2010) Cal.App.4th 1354 (RB at 39-40) stand for the unremarkable position
that statements couched as opinions can be actionable if they imply
false statements of facts. But here, the full basis of Musk’s
statements were disclosed, and there were no implied false facts.

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A reasonable person reading this exchange would not
Page 47 statement that the speaker seriously is maintaining an assertion of
actual fact”] [internal quotations omitted].)
At worst, Musk’s
statements constituted hyperbole or “language used in a loose,
figurative sense,” which is likewise protected. (Gilbert, supra, Cal.App.4th at p. 27.) Either way, Musk’s statements did not imply
underlying facts that were false.
Third, instead of addressing Musk’s legal and factual
Musk’s statements were actually referring to the Roadway Incident,
not the Parking Lot Incident (i.e., the sideswiping). (RB at 35-36.)
But nowhere in the emails does Musk even mention the Roadway
Incident. Moreover, in his declaration supporting the anti-SLAPP
motion, Musk was clear that he was referring to the Parking Lot
Incident when he stated that Hothi almost killed Tesla employees.
(1 AA 70.) Ironically, had Musk been referring to the Roadway
Incident, it would only have served to further confirm the truth of
his statement, i.e., that Hothi almost killed Tesla employees by
following three of them on the highway at high rates of speed for

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contentions, Hothi creates a red herring, arguing at length that
Page 48 over an hour, while swerving towards the car, changing lanes
erratically, and simultaneously photographing the car and posting
to social media. (1 AA 61-64.)
4.
Hothi’s Repeated Reference to the Harassment
Action Are Irrelevant and Misleading.
Throughout Respondent’s Brief, Hothi repeatedly attempts to
relitigate the harassment action filed by Tesla in 2019. (See, e.g., RB
failed to produce audio and video of the incidents with Hothi in that
action. (RB at 34, 35.) This is an irrelevant sideshow.
As Hothi recognizes, Tesla withdrew its petition because
producing these materials “would include confidential information
and would invade the privacy of Tesla employees,” particularly as
to the Roadway Incident, which related to testing Tesla’s autopilot
feature. (RB at 18.)
Although not necessary for the court to consider as noted
above, the police report makes it clear that the video of the Parking
Lot Incident was inconclusive as to whether the Tesla security officer
was struck. (See, supra, fn 8.)

Document received by the CA 1st District Court of Appeal.
at 15-17, 34, 35.) In particular, Hothi asserts that Tesla improperly
Page 49 Tesla’s strategic decisions in a separate litigation are not
relevant, demonstrate nothing as to the truth of Musk’s statements
here, and, are subject to the absolute litigation privilege in any event,
as Hothi admits. (RB at 11.)
B.
Hothi Did Not Establish Malice.
Even if Hothi could prove that Musk’s statements were false
(which he cannot), he would still need to prove that Musk knew
malice. He has not even tried to meet this burden.
1.
Hothi Does Not Dispute the Constitutional
Framework.
A plaintiff is subject to an actual malice standard where (a)
there is a public controversy; (b) the plaintiff voluntarily injects
himself into the public controversy; and (c) the alleged defamatory
statement is “germane” to the plaintiff’s participation in the
controversy. (AOB at 55; RB at 41.)

Document received by the CA 1st District Court of Appeal.
they were false or had reckless disregard for the truth—i.e., actual
Page 50 Here, Hothi inserted himself into public debates regarding
Tesla’s production rates/technology, Tesla’s treatment of its critics,
and the actions of the $TSLAQ group. (AOB at 55-60.)
2.
Hothi
Concedes
the
Public
Controversies
Identified by Musk.
Hothi admits there were public debates “about Tesla’s
production rates and its claims about its technology” and “Tesla’s
asserts that the arguments concerning $TSLAQ are “nothing more
than another way of stating that Hothi criticized Tesla and
challenged its statements about its technology and production
rates,” (RB at 43), a topic on which Hothi admits there was an
ongoing public debate. (RB at 45.)
As Hothi conceded, the $TSLAQ group has been featured
in a documentary and “described in various newspaper articles.” (AA 290:21-28; ¶¶2, 3.)

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history of intimidating its critics.” (RB at 42, 45.) Similarly, Hothi
Page 51 3.
Hothi Inserted Himself Into the Controversies.
Hothi admits that he “inserted himself” into the public debate
about “Tesla’s production rates and its claims about technology.”
(RB at 45.)
Hothi briefly argues that “there is no evidence Hothi inserted
himself” into the debate over Tesla’s treatment of its critics, claiming
that Tesla’s argument to the contrary is based on nothing more than
(RB at 42-43.) This is a misrepresentation of the record below, which
was replete with evidence of Hothi’s insertion into this debate,
before any lawsuit. For example:

Hothi admitted in his anti-SLAPP declaration that he
had
previously
conducted
“research
and
data
gathering” which “revealed discrepancies in claims
Tesla, Inc. (“Tesla”) and its CEO, Defendant Musk, have
made about Tesla’s . . . treatment of its employees and
customers” and that he has published such information

Document received by the CA 1st District Court of Appeal.
Hothi being sued by Tesla and his statements in defense in that case.
Page 52 as a supposed “citizen journalist.”
(7 AA 637, ¶
[emphasis added].)

Hothi entered the debate on this issue publicly,
repeatedly tweeting about it, well before any lawsuit.
(See, e.g., 1 AA 102, Hothi tweet of Aug. 31, 2018, [“Elon
tried to shut up a fraud detector by going after his
brother (knowing very well it was his brother, not
[regarding
Tesla
“whistleblower”
Martin
Tripp,
including excerpts of Tripp’s lawsuit against Tesla]; AA 121, Hothi tweet of Dec. 25, 2018 [wishing “Merry
X-Mas to the short sellers, the haters, [and] to the
doxxed…”].)
Thus even before Hothi declared in the Harassment Action
that Tesla tried to silence its critics, (see, e.g., 3 AA 291, ¶ 4), Hothi
was an active participant in the public discussion on the issue.
Finally, Hothi asserts that he did not insert himself into issues
related to $TSLAQ based on the argument that $TSLAQ . . . does not

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him).”]; 1 AA 118, Hothi tweets of Oct. 16, 2018
Page 53 have members,” ignoring his proud declaration under oath that “I
am a member of the so-called $TSLAQ.” (2 AA 165, ¶ 2.)4.
Musk’s Statements Were Germane to the
Controversies.
A statement is germane if it is about “plaintiff’s participation in
the controversy;” it does not have to be focused only on the
underlying controversy. (See Copp v. Paxton, (1996) 45 Cal.App.4th
Cir. 2013) 715 F.3d 254, 266 [defining germaneness as “whether the
alleged defamation is related to the plaintiff’s participation in the
controversy”] [emphasis added]; Jankovic, supra, 822 F.3d at p. [“The germaneness test is met because the defamatory statement
relates to the individual's role in the public controversy.”].) Hothi
does not dispute these general standards.
In addition, on March 25, 2019, Hothi publicly tweeted,
“No rest until TSLAQ.” (1 AA 123.) Soon after, Hothi received a
tweet saying, “Post a GoFundMe and a bitcoin address if you need
help. $TSLAQ is with you!” (1 AA 125.) And such a fund was
started by Lawrence Fossi, Hothi’s counsel in this matter, “a fierce
Tesla critic . . . [and] one of the TSLAQ community’s most active
members.” (1 AA 132.)

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829, 846, [emphasis added]; see also Makaeff v. Trump Univ., LLC (9th
Page 54 As described fully above regarding the first prong of the antiSLAPP analysis and in Appellant’s Opening Brief, all of the
challenged statements related to issues being publicly debated. (See
AOB at 58-60; see, infra, Section I(A).)
In response, Hothi again narrowly frames the debate
regarding Tesla in which he admits he was involved, i.e., Tesla’s
production rates and its claims about its technology, in order to
issues.” (RB at 45.) However, Musk’s statements directly refuted
the accuracy, reliability, and propriety of Hothi’s public statements
about the company. That is germane to the public controversy and
is protected.
For example, in Nadel v. Regents of University of
California, the court held that the university’s employees’ statements
that protesters had engaged in violence and destruction of property
related to the ongoing public debate about university construction,
into which the protestors had inserted themselves.
((1994)
Cal.App.4th 1251, 1269; see also Waldbaum, supra, 627 F.2d at p.
Document received by the CA 1st District Court of Appeal.
argue that “Musk’s defamatory statements were unrelated to those
Page 55 [a plaintiff’s “talents, education, experience, and motives could have
been relevant to the public's decision whether to listen to him.”].)
The one case cited by Hothi, Grenier v. Taylor, (RB at 41-42),
proves the point. In Grenier, the court held that although plaintiff
sought public attention as a pastor, author, and radio host, he was
not a limited-purpose public figure for purposes of defendant’s
statements alleging child abuse and other crimes. (Grenier, supra,
Thus, the defendants’ personal
complaints against the plaintiff were unrelated to plaintiff’s public
persona.
Here, on the other hand, Hothi sought and achieved
attention specifically regarding his criticisms of Tesla. And Musk’s
statements were directly related to Hothi’s involvement on that
topic. (See, infra, Section II(B)(3).)
As to Tesla’s treatment of its critics, Mr. Greenspan’s email
specifically referred to Hothi as a critic of Tesla who had been
mistreated (as well as others, including Martin Tripp). As noted
above, Hothi inserted himself into that debate previously, including
public statements about Mr. Tripp and others. (1 AA 102, 118.)

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234 Cal.App.4th at p. 485.)
Page 56 Musk’s response challenged Hothi’s label as a critic by noting that
Hothi had gone beyond mere criticism of Tesla, undertaking overt
acts that ultimately put Tesla employees in danger. (1 AA 77.) That
is certainly a statement about “plaintiff’s participation in the
controversy.” (Copp, supra, 45 Cal.App.4th at p. 846.)
Finally, Hothi asserts that Musk’s statements were not
germane to the actions of $TSLAQ because “Musk made no mention
$TSLAQ.”
(RB at 43.)
This is misleading at best.
Hothi has
described $TSLAQ as a “group of people who are skeptical about
the Tesla business enterprise and who regularly share information
on the social media platform, Twitter,” of which he is a member. (AA 165, ¶ 2.) Tesla’s business and its critics are the central subjects
of the Greenspan/Musk emails, (see, infra, Section I(A)).
Again,
Musk’s statements are germane because they relate to Hothi’s
participation in that debate. (Copp, supra, 45 Cal.App.4th at p. 846.)

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of $TSLAQ in his email, and his accusations have no connection to
Page 57 5.
Hothi’s Germaneness Arguments Are Meritless.
Rather than addressing the germaneness issues head-on,
Hothi’s brief goes down a five-page rabbit hole arguing (a) Musk is
wrong in arguing that a statement is germane to a public
controversy unless it is “wholly unrelated” to the controversy,
pursuant to the Waldbaum case; and (b) Musk tried (and failed) to
make the same argument in an unrelated case. (RB at 43-48.) These
“germane” to the controversies even apart from the “wholly
unrelated” standard, as described above.
Moreover, Hothi is wrong about the “wholly unrelated”
standard and Musk’s prior litigation. In the first instance, Hothi
pointed to four separate California cases that have relied on and
adopted the seminal Waldbaum case for various elements of a
defamation analysis.
(RB at 44 citing Hoang v. Tran (2021)
Cal.App.5th 513, 536 [general-purpose public figure analysis];
Annette F., supra, 119 Cal.App.4th at p. 1164 [definition of “public
controversy”]; Stolz v. KSFM 102 FM (1994) 30 Cal.App.4th 195,
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discussions are largely irrelevant, as the challenged statements are
Page 58 [nationwide fame is not required to establish all-purpose public
figure status]; and Copp, supra, 45 Cal.App.4th at 846 [“[w]here the
issue turns on expert or specialized knowledge, the plaintiff’s own
credentials assume such relevance to the controversy.”].) Nor does
Hothi cite any California authority that otherwise defines a standard
for germaneness, let alone one that contradicts Waldbaum’s “wholly
unrelated” standard.
court [in the Unsworth matter] to apply Waldbaum’s ‘wholly
unrelated’ standard . . .The court rejected Musk’s arguments.” (RB
at 46.)
Hothi’s statement is misleading, as the District Court
actually
adopted
the
“wholly
unrelated”
standard,
noting
“[c]omments ‘wholly unrelated to the controversy’ are not
protected.” (Unsworth v. Musk (C.D. Cal. Nov. 18, 2019) 2019 WL
8220721 at *6.) However, the court ultimately found that Musk’s

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As to the unrelated case, Hothi argues that “Musk urged the
Page 59 statements were, in fact, wholly unrelated, based on the facts of that
case. (Id. at *9.)Regardless of whether this Court adopts the Walbaum
standard for the outside boundaries of germaneness, on the facts
here, Musk’s statements pertain to Hothi’s role in the debate
regarding Tesla’s practices, the treatment of Tesla’s critics, and the
Nor did the court in Unsworth declare as a general matter
that “accusations of wrongdoing are not probative of a person’s
veracity,” as Hothi asserts. (RB at 47.) Rather, the Unsworth court
simply held that the allegations of purported wrongdoing at issue
had no nexus to the controversy. (Unsworth, 2019 WL 8220721, at
pp. *7-9.) As noted above, the circumstances here are much
different, as Hothi’s misconduct related directly to his participation
in a public controversy. In addition, and as conceded by Hothi (RB
at 46 n. 9), Musk ultimately received a jury verdict in his favor that
the statements at issue in the Unsworth case were not defamatory.
Hothi briefly argues that it would be contrary to public
policy to determine that Hothi is a limited purpose public figure.
(RB at 47-48.) As Hothi correctly states, public figures can access the
media and other channels of communication in order to “counter
criticism and to expose the fallacies of defamatory statements.” (Id.
at 48, citing Reader's Digest, supra, 37 Cal.3d at p. 253.) But Hothi had
access to the media, and was adept at using social media as a
platform for informing the public, long before Musk’s statements.
For example, Hothi himself admits that he “came to prominence
during 2018” for his Twitter posts about Tesla, that he gained 10,followers on Twitter, and that he “became part of the media

Document received by the CA 1st District Court of Appeal.
$TSLAQ conspiracy, which satisfies any germaneness standard.18
Page 60 6.
Hothi Misstates the Showing Required for
Actual Malice.
Hothi makes two irrelevant and misleading legal arguments
regarding the actual malice standard:
First, Hothi asserts that he does not have to “prove” malice to
avoid dismissal under the anti-SLAPP statute. (RB at 48.) While it is
accurate that Hothi does not have to fully “prove” his case now, he
to find that he is likely to prevail at trial.
The court in
ComputerXpress, Inc. v. Jackson, a case cited by Hothi, (RB at 49),
makes this standard clear, noting that a plaintiff “’cannot simply
rely on the allegations in the complaint’ . . . but ‘must provide the
court with sufficient evidence to permit the court to determine
whether 'there is a probability that the plaintiff will prevail on the
discussion about Tesla’s [alleged] production problems.” (3 AA
291:4-18, ¶¶ 5-6 [emphasis added].) Thus, Hothi did not suffer from
any lack of “self-help” as a fully private individual might. (Reader's
Digest, supra, 37 Cal.3d at p. 253.)

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does have to submit sufficient evidence that would allow the court
Page 61 claim.’” ((2001) 93 Cal.App.4th 993, 1010 [emphasis added, citations
omitted].)In terms of actual malice, it is clear (and undisputed) that
Hothi can only meet his burden by “introducing sufficient facts to
establish a prima facie case of actual malice; in other words, []he
must establish a reasonable probability that []he can produce clear
and convincing evidence showing that the statements were made
(Young v. CBS Broad., Inc. (2012)
Cal.App.4th 551, 563 (Young), [citations omitted]; Annette F., supra,
119 Cal.App.4th at pp. 1170-1172 [trial court should have granted
anti-SLAPP motion where limited purpose public figure plaintiff
“failed to show a probability of proving actual malice by clear and
convincing evidence”]; Conroy v. Spitzer, (1999) 70 Cal.App.4th 1446,
1451, 1454 [to meet anti-SLAPP statute’s requirement that he show
he would “probably” prevail on his claim, public figure plaintiff
Hothi underplays his burden by claiming that he must
only “state[] and substantiate[] a legally sufficient claim.” (RB at 4849.) But it is clear that he must “demonstrate that he possesses a
legally sufficient claim which is ‘substantiated,’ that is, supported by

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with actual malice.”
Page 62 “was required to ‘show a likelihood that he could produce clear and
convincing evidence’” that defendant made statements with actual
malice].)20 As fully described below, Hothi has not met this burden.
Second, Hothi asserts that a court “does not weigh the
evidence, but instead must accept as true all evidence favorable to a
plaintiff.” (RB at 49.) This is an over-simplification at best. While a
court does not “weigh [defendant’s] evidence against the plaintiff’s,
consider a defendant’s evidence “with a view toward whether it
defeats the plaintiff's showing as a matter of law, such as by
establishing a defense or the absence of a necessary element.” (1-Contacts, Inc. v. Steinberg (2003) 107 Cal.App.4th 568, 585). As the
California Supreme Court has held, “though the trial court does not
weigh the credibility or comparative probative strength of
competent, admissible evidence.” (Coll. Hosp. Inc. v. Superior Ct.
(1994) 8 Cal.4th 704, 719.)
Hothi criticizes Musk for citing cases that discuss actual
malice on summary judgment. (RB at 49-50). However, Musk does
not cite these cases for the evidentiary showing needed on an antiSLAPP motion but rather to describe the substantive law defining

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in terms of either credibility or persuasiveness,” the court must
Page 63 competing evidence, it should grant the [anti-SLAPP] motion if, as a
matter of law, the defendant's evidence supporting the motion
defeats the plaintiff's attempt to establish evidentiary support for the
claim.” (Wilson v. Parker, Covert & Chidester (2002) 28 Cal.4th 811,
821.)As fully described below, Hothi has not submitted sufficient
evidence of Musk’s actual malice (knowing falsity or reckless
evidence that his statements were based on reports he received from
employees, which negate any purported malice and must be
considered by a court in ruling on an anti-SLAPP motion. (Id.; AOB
at 61-63.)
actual malice under California law, which Hothi has the burden of
establishing. (See AOB at 62 (describing cases).)
Cases relied up on by Hothi stand for the same. (See
Church of Scientology v. Wollersheim (1996) 42 Cal.App.4th 628, 656,
[“It is recognized, with the requirement that the court consider the
pleadings and affidavits of the parties, the test is similar to the
standard applied to evidentiary showings in summary judgment
motions.”]; Wilcox v. Superior Court (1994) 27 Cal.App.4th 809, [“standard is much like that used in determining a motion for
nonsuit or directed verdict.”].)

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disregard of the truth). On the other hand, Musk has submitted
Page 64 7.
The Trial Court Erred by Finding Malice Based
Solely on Musk’s Alleged Dislike of Hothi.
Actual malice in the Constitutional sense requires evidence of
knowledge of falsity or reckless disregard for truth or falsity.
(Annette F., supra, 119 Cal.App.4th at p. 1168; AOB at 63-65).
The only evidence or argument regarding malice presented by
Hothi in the trial court related to Musk’s alleged “hatred or ill will”
finding that Hothi will succeed in proving malice based on clear and
convincing evidence was the same evidence of alleged ill will. (AA 832.) However, such evidence standing alone is insufficient as a
matter of law to prove actual malice.
(Annette F., supra,
Cal.App.4th at p. 1168 [holding “extreme anger and hostility. . . [do
not] suffice to establish a probability of proving actual malice by
clear and convincing evidence. Actual malice may not be inferred
solely from evidence of personal spite, ill will, or bad motive.”];
McGarry v. Univ. of San Diego (2007) 154 Cal.App.4th 97, 114 [proper
inquiry “directs attention to the defendant's attitude toward the

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towards Hothi. (7 AA 634:12-23.). The sole basis for the trial court’s
Page 65 truth or falsity of the material published, not the defendant's attitude
toward the plaintiff.”].)22 This alone mandates reversal.
But there is more: Musk submitted evidence demonstrating
that he relied on employee reports and the sworn statements of
Tesla employees. That is enough to establish a lack of malice (which
is not even Musk’s burden to prove).
(See McGarry, supra,
Cal.App.4th at p. 117 [granting anti-SLAPP where statement was
believed to be reliable sources,” and plaintiff produced no contrary
evidence, much less evidence capable of “command[ing] the
unhesitating assent of every reasonable mind.”]; Jackson, supra, Cal.App.4th at p. 26 [upholding trial court’s conclusion that
statement made “on the basis of information provided by a single
reliable source precludes a finding of actual malice”]; Christian
Research Inst. v. Alnor (2007) 148 Cal.App.4th 71, 87-88 [no actual
Musk’s argument is not that the court should not have
considered Hothi’s “evidence” of ill will (RB at 50), but rather that
such evidence is plainly insufficient, standing alone (which it was
here), to demonstrate that Musk acted with actual malice.

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“based on information [declarant] had received from people she
Page 66 malice where information was purportedly obtained from an
effectively anonymous source in the postal inspector’s office].)
On appeal, Hothi strings together a series of unavailing (and
sometimes new) arguments:
First, without citing any record evidence, Hothi opines for the
first time that Musk’s reliance on the sworn statements of his
employees were unwarranted, as the declarants were “seeking to
Hothi, [and] would most certainly be unreliable and biased.” (RB at
51.) Hothi’s suggestion that Tesla employees perjured themselves is
unsupported and unavailing, as numerous cases, cited above, have
held malice can be disproven by reliance on such sources.
Second, Hothi asserts (again for the first time on appeal) that
Musk failed to further investigate his employee’s claims about
Hothi’s actions, thus demonstrating malice.
(RB at 52-53.)
But
failure to investigate is not sufficient as a matter of law to prove
malice, as numerous courts have held. (Reader's Digest, supra, Cal.3d at p. 258; Christian Rsch., supra, 148 Cal.App.4th at p.
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gain favor with their CEO, whom they knew to be hostile towards
Page 67 [“Actual malice ‘is not measured by whether a reasonably prudent
man would have published, or would have investigated before
publishing. . . . Lack of due care is not the measure of liability, nor is
gross or even extreme negligence.”]; Nadel, supra, 28 Cal.App.4th at
p. 1270-71 [same, relying on employee declarations].)Finally, even if ill will were sufficient to establish falsity or
reckless disregard for the truth (which it is not), the two pieces of
of any standard and do not establish that Hothi could prove
anything by clear and convincing evidence:

Counsel’s argument in the preliminary statement of
Musk’s anti-SLAPP motion, stating that Plaintiff is a
"conspiracy
theorist
obsessed
with
spreading
Hothi also argues throughout that Musk has failed to
produce certain evidence to support his accusations, the absence of
which creates inferences against him. (RB at 52-53.) However, the
burden here is Hothi’s, not Musk’s. (Young, supra, 212 Cal.App.4th
at p. 563.) And Hothi could have, but chose not to, pursue any
discovery in support of his opposition to the anti-SLAPP motion.
(See Cal. Civ. Proc. Code §425.16 [permitting specified discovery
related to anti-SLAPP motion].)

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evidence relied on by Hothi and the lower court fall woefully short
Page 68 misinformation online about Tesla" is evidence of
nothing, let alone Musk’s state of mind when he
responded to Mr. Greenspan. (In re Zeth S. (2003) Cal.4th 396, 416, fn. 11 [counsel's arguments in brief are
not evidence].)

The “dickbutt” tweet does not name Hothi, and Hothi
presents no evidence other than his own supposition
to mention that the image itself was of a Tesla employee
badge, and Hothi was never a Tesla employee. (See, e.g.,
7 AA 716.) Nor does he factually tie the words “totally
legitimate” or “espionage” to himself other than by
admitting that he had been spying on Tesla. (RB at 53.)
Even accepting all of this “evidence,” it would not be enough.
(Annette F., supra, 119 Cal.App.4th at p. 1168; see also Bose Corp. v.
Consumers Union of U.S. (1984) Inc., 466 U.S. 485, 512, [even where
defendant did “not rebut any inference of actual malice that the

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that the tweet pertained to him. (RB at 53.) He also fails
Page 69 record otherwise supports,” plaintiff’s evidence on its own may “not
constitute clear and convincing evidence of actual malice.”].)
III.
MUSK DID NOT WAIVE ANY ARGUMENTS.
At the outset of his argument, Hothi makes several disjointed
“waiver” arguments, none of which have merit or require extensive
discussion. (RB at 21-23.)
Hothi first argues that Musk waived the right to make any
supra, Section I(A)), by citing FilmOn only in its reply in support of
its anti-SLAPP motion below. (RB at 21.) But Musk’s anti-SLAPP
motion contains an extensive argument regarding how Musk’s
statements related to the matters of public interest he identified. (AA 45-46.) Far from adding a “new grounds for relief,” Musk’s
reply brief below simply did what all reply briefs are designed to
do—it addressed a case cited by Hothi and discussed how that case
actually
supported
Musk’s
argument.
(
AA
786-788.)
And in any event, FilmOn did not create a new test, but
instead summarized California case law on the issue of public
interest analysis—Musk cited many cases on that subject in his anti
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argument related to FilmOn’s “functional relationship test” (see,
Page 70 Unsurprisingly, Hothi cites no cases supporting his nonsensical
argument that a litigant waives the right to discuss a case because he
first cited it on reply in the lower court.
Hothi next argues that Musk failed to present an argument
that the trial court improperly excluded certain exhibits to the
Zalduendo Declaration, particularly Hothi’s posts on Twitter (RB at
22.)
That is untrue. Musk made clear the reason why the court’s
declaration authenticating the contents of a website is sufficient”
and that “the California Supreme Court has made clear that a court
should consider evidence at the anti-SLAPP stage as long as ‘it is
reasonably possible the proffered evidence set out in those
statements will be admissible at trial,’” citing cases supporting its
arguments. (See AOB at 13 n.2; Evid. Code §§ 1552, 1553; Rearden
LLC v. Rearden Commerce, Inc. (N.D. Cal. 2009) 597 F.Supp.2d 1006,
SLAPP motion and obviously did not waive the right to argue his
speech is protected as it relates to an issue of public interest.
(FilmOn, supra, 7 Cal.5th at p. 149; 1 AA 45-46.)

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exclusion of such evidence was improper, arguing that “an attorney
Page 71 1027; Sweetwater Union High Sch. Dist. v. Gilbane Bldg. Co. (2019) Cal.5th 931, 949.)
Hothi’s next waiver argument is that the Court should ignore
Musk’s argument regarding the admissibility of Hothi’s Twitter
posts because it was made in a footnote. But the cases he cites do
not stand for the proposition that courts must or even should ignore
arguments made in footnotes. In both Evans v. Centerstone Dev. Co.
Cal.App.4th 1449, 1453 n.7, the court determined that the issue was
waived because it was not properly raised in the trial court, and it
noted that the issue was also only raised in a footnote on appeal.
Here, Musk extensively addressed the admissibility of this evidence
below (in connection with Hothi’s evidentiary objections, all of
which are part of the record). (8 AA 820.)
In any event, whether these exhibits are excluded is not a
particularly material issue for this Court. Hothi does not dispute
that he made public statements about Tesla and Musk on social
media—indeed, he details them in his opposition brief. (RB at 13.)

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(2005) 134 Cal.App.4th 151, 160, and Barker v. Garza (2013) 218
Page 72 He did the same in his previous declarations, in which he stated that
he is “part of the media discussion about Tesla’s [alleged]
production problems” and that he is part of the $TSLAQ group that
“regularly share[s] information on the social medial platform,
Twitter.” (2 AA 165:22-24, ¶ 2; 2 AA 166:4-18, ¶¶ 5-6.)
Hothi
describes, for example, that he “tracked Tesla’s actual production
rate . . . and documented the company’s erection of a tent for the
photos, on Twitter.” (RB at 13.) The lower court erred by excluding
these exhibits, but this Court can make all necessary determinations
without them.
IV.
THE COURT SHOULD AWARD MUSK FEES.
Hothi argues that Musk’s appeal is frivolous, instigated
merely for delay, and Hothi should be awarded his fees as a result.
(RB at 54.)
This is a very far cry from the situation described by the court
in Hewlett-Packard, cited by Hothi to demonstrate Musk’s purported

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manufacture of Model 3 cars [and] posted his findings, including
Page 73 abuse of this process. The language Hothi cites comes from HewlettPackard’s description of the Brar case in which:
defendant filed an anti–SLAPP motion even though, as
an enforcement action brought by the Attorney General,
the matter was categorically exempt from the anti–SLAPP
law. [citations] Faced with this seemingly impenetrable
barrier to relief, the defendant offered only a tortured
irrelevant”
argument
impugning the
Attorney General's motives. [citations] The court, found
“‘brought for reasons of delay’ virtually tattooed on [the
appeal's] forehead,” illustrating the fact that “under a
rule of automatic stay . . . the incentive to appeal even
the denial of a patently frivolous anti–SLAPP motion is
overwhelming.”
(Hewlett-Packard Co. v. Oracle Corp., (2015) 239 Cal.App.4th 1174,
1186 [quoting People ex rel. Lockyer v. Brar (2004) 115 Cal.App.4th
1315, 1319].) Musk’s arguments are not “categorically exempt” from
the protection of the anti-SLAPP statute, and Hothi has not argued

Document received by the CA 1st District Court of Appeal.
and “quite
Page 74 such. Musk was fully within his rights to bring such a motion, and
to appeal the outcome when the trial court made incorrect legal
findings.
As described in his Opening Brief, Musk is entitled to fees if
he prevails, and Hothi does not argue otherwise. (AOB 66-67.)
Conclusion
Musk respectfully requests that the Court reverse the trial
with instructions that the trial court grant the motion to strike,
dismiss Hothi’s Complaint with prejudice, and award Musk the
attorneys’ fees he has incurred in defending this action.

Document received by the CA 1st District Court of Appeal.
court’s order denying Musk’s special motion to strike and remand
Page 75 Dated: September 3,
Respectfully submitted,
Counsel for Defendant-Appellant Elon Musk

Document received by the CA 1st District Court of Appeal.
ALEX SPIRO
(admitted pro hac vice)
MICHAEL T. LIFRAK
QUINN EMANUEL URQUHART
& SULLIVAN, LLP
865 S. Figuero St., 10th Floor
Los Angeles, CA Telephone: (213) 443-Facsimile: (213) 443-alexspiro@quinnemanuel.com
michaellifrak@quinnemanuel.com
Page 76 CERTIFICATE OF COMPLIANCE WITH RULE 8.
I certify that, pursuant to California Rule of Court 8.204, the
attached Appellant’s Brief contains 11,769 words, as determined by a
computer word count.
Respectfully submitted,
ALEX SPIRO
(admitted pro hac vice)
MICHAEL T. LIFRAK
QUINN EMANUEL URQUHART
& SULLIVAN, LLP
865 S. Figuero St., 10th Floor
Los Angeles, CA Telephone: (213) 443-Facsimile: (213) 443-alexspiro@quinnemanuel.com
michaellifrak@quinnemanuel.com
Counsel for Defendant-Appellant Elon Musk.

Document received by the CA 1st District Court of Appeal.
Dated: September 3, 2021
Page 77 DECLARATION OF SERVICE
STATE OF CALIFORNIA, COUNTY OF LOS ANGELES
At the time of service, I was over 18 years of age and not a
party to this action. I am employed in the County of Los Angeles,
State of California. My business address is 865 South Figueroa Street,
10th Floor, Los Angeles, CA 90017-2543.
Lawrence J. Fossi
25 Hawthorn Lane
Bozeman, MT Lawrence.fossi@outlook.com
Law Office of D. Gill Sperlein
345 Grove Street
San Francisco, CA gill@sperleinlaw.com
BY ELECTRONIC MAIL TRANSMISSION: By electronic mail
transmission from jeaninezalduendo@quinnemanuel.com on
September 3, 2021 by transmitting a PDF format copy of such
documents to counsel for the parties at the e-mail address listed
above, per agreement between the parties regarding electronic mail
service. The documents were transmitted by electronic transmission
and such transmission was reported as complete and without error.
BY TRUE FILING: By the Court’s True Filing system.
I declare under penalty of perjury under the laws of the State
of California that the foregoing is true and correct.
Executed on September 3, 2021, at Los Angeles, California.
Jeanine Zalduendo

Document received by the CA 1st District Court of Appeal.
On September 3, 2021, I served true copies of the following
document(s) described as APPELLANT’S REPLY BRIEF on the
interested parties in this action as follows:
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