Opinion filed. (Signed Unpublished) The order is affirmed. Randeep Hothi may recover his costs on appeal. (Cal. Rules of Court, rule 8.278(a)(1), (2).)
Page 1 Filed 12/20/21 Hothi v. Musk CA1/
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or
ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION ONE
RANDEEP HOTHI,
Plaintiff and Respondent,
v.
A(Alameda County
Super. Ct. No. RG20069852)
ELON MUSK,
Defendant and Appellant
Plaintiff Randeep Hothi filed a complaint against defendant Elon Musk
alleging defamation in connection with an e-mail Musk sent to a third party
stating Hothi harassed and almost killed Tesla, Inc. (Tesla) employees. Musk
appeals from the trial court’s order denying his special motion to strike under
California’s anti-SLAPP statute, Code of Civil Procedure section 425.16. 1 We
affirm.
I. BACKGROUND
Hothi “developed an interest in Tesla’s business and, in particular, its
claims about its technology.” In connection with that interest, he created an
Such a motion is referred to as an anti-SLAPP motion. “An antiSLAPP motion seeks to strike a ‘[s]trategic lawsuit against public
participation,’ that is, a ‘SLAPP.’ ” (Wilson v. Cable News Network, Inc.
(2019) 7 Cal.5th 871, 882, fn. 2.) All statutory citations are to the Code of
Civil Procedure. Page 2 anonymous Twitter account and tweeted “skepticism” about Tesla’s
production and technology, including the automation of Tesla’s Model vehicles.
In connection with his interest in Tesla, Hothi regularly posted photos
and videos of the Tesla Fremont factory parking lots and logistics lots. Hothi
placed and removed remote cameras in the Tesla lots, attempted to speak
with Tesla employees, and followed and recorded a Tesla test vehicle while it
was being driven on public roads.
Hothi’s vehicle also was observed in a parking lot of Tesla’s factory.
When two security officers approached to deliver a verbal notice of trespass,
Hothi drove out of his parking spot. One of the officers reported that “the
driver’s side of [Hothi’s] vehicle made contact with [the officer’s] left knee”
while Hothi exited his parking spot. Hothi asserted he did not believe his
vehicle made contact with the officer.
Tesla filed an ex parte petition for a temporary restraining order
against Hothi. The petition alleged Hothi dangerously swerved his car
toward the Tesla test vehicle he had followed. The petition also asserted
Hothi drove recklessly when leaving the Tesla lot, which resulted in a
security guard suffering “minor injuries.” The trial court granted a
temporary restraining order. Prior to the hearing on Tesla’s request for a
permanent restraining order, Hothi requested discovery from Tesla. The
court granted Hothi’s request. Tesla withdrew its petition rather than
produce the requested discovery. The court dismissed the case on July 26,
2019, and Hothi sought attorney fees.
Thereafter, Aaron Greenspan, who operates a website posting news
about various corporations and the legal system, engaged Musk in an e-mail
exchange. As part of that exchange, Greenspan informed Musk “the way Page 3 your organization has treated . . . Randeep Hothi—among others—is truly
shameful, and has exemplified anything but openness.” Musk replied in
relevant part: “As for the people you mention below, they have actively
harassed and, in the case of Hothi, almost killed Tesla employees. What was
a sideswipe when Hothi hit one of our people could easily have been a death
with 6 inches of difference.” Greenspan published his exchange with Musk
on his Twitter account.
Hothi subsequently filed a lawsuit against Musk alleging one count of
defamation based on Musk’s e-mail to Greenspan. In response, Musk filed a
motion to strike pursuant to section 425.16. Musk alleged the claim arose
from Musk’s speech on an issue of public interest and a matter pending
before the court. Musk further asserted Hothi failed to demonstrate a
probability of success because Hothi could not demonstrate the statements
were false or made with malice.
Hothi opposed the motion. He disputed Musk’s claim that the
statements were in connection with an issue of public interest or related to
any pending litigation. Hothi also asserted Musk’s statements constituted
defamation per se and were not subject to any valid defense or privilege.
The trial court denied the motion. It concluded Musk’s statements
were not protected by the anti-SLAPP statute because they did not relate to a
public issue and were not in connection with an issue before the court
because the prior petition had already been dismissed and the statements
were unrelated to the fee motion. The trial court further found there were
triable issues of fact as to the truth of Musk’s alleged defamatory statements
and whether Hothi can demonstrate malice. Musk timely appealed. Page 4 II. DISCUSSION
A. Relevant Law
“The anti-SLAPP statute applies only to a ‘cause of action . . . arising
from’ acts in furtherance of the defendant’s constitutional right of petition or
free speech in connection with a public issue.” (Martinez v. Metabolife
Internat., Inc. (2003) 113 Cal.App.4th 181, 186.) Section 425.16,
subdivision (e) identifies four categories of protected conduct: “(1) any
written or oral statement or writing made before a legislative, executive, or
judicial proceeding, or any other official proceeding authorized by law, (2) any
written or oral statement or writing made in connection with an issue under
consideration or review by a legislative, executive, or judicial body, or any
other official proceeding authorized by law, (3) any written or oral statement
or writing made in a place open to the public or a public forum in connection
with an issue of public interest, or (4) any other 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.”
The purpose of such motions is “to provide ‘for the early dismissal of
unmeritorious claims filed to interfere with the valid exercise of the
constitutional rights of freedom of speech and petition for the redress of
grievances.’ [Citation.] The statute is to ‘be construed broadly.’ ” (Simmons
v. Bauer Media Group USA, LLC (2020) 50 Cal.App.5th 1037, 1043.)
The analysis of an anti-SLAPP motion has two steps. (Park v. Board of
Trustees of California State University (2017) 2 Cal.5th 1057, 1061 (Park).)
In the first step, a court considers whether the defendant demonstrated that
“the act underlying the plaintiff’s cause fits one of the categories spelled out
in section 425.16, subdivision (e),” and is therefore protected activity. (Braun
v. Chronicle Publishing Co. (1997) 52 Cal.App.4th 1036, 1043.) “The Page 5 ‘principal thrust or gravamen’ of [the plaintiff’s] claim determines whether
section 425.16 applies.” (Olive Properties, L.P. v. Coolwaters Enterprises, Inc.
(2015) 241 Cal.App.4th 1169, 1175.) If the defendant cannot make the
required showing, or “ ‘if the allegations of protected activity are only
incidental to a cause of action based essentially on nonprotected activity,’ ”
the anti-SLAPP motion must be denied. (Jackson v. Mayweather (2017)
10 Cal.App.5th 1240, 1251; see Flatley v. Mauro (2006) 39 Cal.4th 299, 317.)
If the defendant makes the required showing in the first step, the
burden shifts to the plaintiff in the second step to demonstrate “that there is
a probability that [he or she] will prevail” on the claim at issue. (§ 425.16,
subd. (b)(1).) In determining whether the plaintiff has carried this burden,
the court considers “the pleadings[ ] and supporting and opposing affidavits
stating the facts upon which the liability or defense is based.” (§ 425.16,
subd. (b)(2).) The plaintiff cannot, however, sustain its burden with
inadmissible evidence or new allegations and claims. (Kreeger v. Wanland
(2006) 141 Cal.App.4th 826, 831; see Hansen v. Department of Corrections &
Rehabilitation (2008) 171 Cal.App.4th 1537, 1547.)
“Only a [claim] that satisfies both prongs of the anti-SLAPP statute—
i.e., that arises from protected speech or petitioning and lacks even minimal
merit—is a SLAPP, subject to being stricken under the statute.” (Navellier v.
Sletten (2002) 29 Cal.4th 82, 89.) We independently review the denial of an
anti-SLAPP motion. (Park v. Board of Trustees of California State
University, supra, 2 Cal.5th at p. 1067.)
B. The Anti-SLAPP Motion
Musk first argues he satisfied the first prong of the analysis because
his statements related to both matters of public interest and matters pending
before the court. He then asserts Hothi did not satisfy the second prong Page 6 because he failed to demonstrate the statements were false or made with
malice. We disagree because Musk failed to demonstrate his statements
constitute protected activity.
1. Protected Activity—Matter of Public Interest
Musk first asserts the anti-SLAPP statute applies because his e-mail
related to a matter of public interest.
The California Supreme Court recently set forth the appropriate
analysis in FilmOn.com Inc. v. DoubleVerify Inc. (2019) 7 Cal.5th (FilmOn). The court explained: “The inquiry under [section 425.16,
subdivision (e)(4)] . . . calls for a two-part analysis rooted in the statute’s
purpose and internal logic. 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. [Citation.] Second, we ask what
functional relationship exists between the speech and the public conversation
about some matter of public interest. It is at the latter stage that context
proves useful.” (Id. at pp. 149–150.)
Musk asserts Tesla’s manufacturing operations and technological
capabilities, the manner in which Tesla and Musk treat critics, and the
“$TSLAQ” group are matters of public interest. Even assuming these issues
are, in fact, matters of public interest, section 425.16, subdivision (e)(4)
“demands ‘some degree of closeness’ between the challenged statements and
the asserted public interest. [Citation.] . . . ‘[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.’ ” (FilmOn,
supra, 7 Cal.5th at p. 150.) Here, the defamation claim relates to two
sentences in Musk’s e-mail to Greenspan, which reads as follows: “As for the
people you mention below, they have actively harassed and, in the case of Page 7 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.”
These statements did not involve Tesla’s technology or operations, Musk and
Tesla’s treatment of critics, or the alleged $TSLAQ group. While the
complaint discusses Tesla’s operations, “[a]llegations of protected activity
that . . . ‘merely provide context, without supporting a claim for recovery,
cannot be stricken under the anti-SLAPP statute.’ ” (Ojjeh v. Brown (2019)
43 Cal.App.5th 1027, 1036.)
Musk asserts the exchange “furthered” the debate regarding Tesla’s
operations by highlighting Hothi’s “unreliable and improper methods for
obtaining his supposed information.” He also contends the statements about
Hothi’s “misconduct” relates to his and Tesla’s treatment of critics and
$TSLAQ’s goals of destroying Tesla. We disagree. There is no “functional
relationship” between the alleged issues of public interest and Musk’s
statements. (See FilmOn, supra, 7 Cal.5th at pp. 149–150.) For example,
Musk’s comment that Hothi harassed employees and hit and almost killed
employees does not relate to the reliability of Hothi’s information. Nor does
the statement refute Hothi’s comments about Tesla or assert Tesla’s past
treatment of Hothi was appropriate.
In Wilson v. Cable News Network, Inc., supra, 7 Cal.5th 871 (Wilson),
the California Supreme Court addressed whether a defamation claim
involving allegations of plagiarism related to an issue of public interest. (Id.
at p. 899.) Cable News Network, Inc. (CNN) argued in relevant part that a
journalist’s “professional competence,” “the reasons for his termination,” and
“journalistic ethics” were issues of public interest. (Id. at pp. 901, 902.) The
court rejected these arguments, explaining an “isolated plagiarism incident
did not contribute to public debate about when authors may or may not Page 8 borrow without attribution. ‘What a court scrutinizing the nature of speech
in the anti-SLAPP context must focus on is the speech at hand, rather than
the prospects that such speech may conceivably have indirect consequences
for an issue of public concern.’ ” (Id. at p. 903.) The court concluded “CNN’s
privately communicated statements about [a journalist’s] purported violation
of journalistic ethics do not constitute ‘conduct in furtherance of . . . the
constitutional right of free speech in connection with a public issue or an
issue of public interest.’ ” (Id. at p. 904; see also Dyer v. Childress (2007)
147 Cal.App.4th 1273, 1280 [“The fact that ‘a broad and amorphous public
interest’ can be connected to a specific dispute is not sufficient to meet the
statutory requirements [of the anti-SLAPP statute].”].)
Here, as in Wilson, we must focus on the nature of the privately
communicated statements regarding Hothi’s alleged misconduct rather than
the potential of such speech to indirectly impact a matter of public interest.
However, Musk’s arguments do not focus on the nature of the statements but
rather on such indirect impact—i.e., countering allegations that Tesla and
Musk mislead the public about its technology and mistreat those who
criticize the company and addressing the actions of the $TSLAQ group.
Accordingly, the statement does not “ ‘contribute to the public debate’ ”
regarding any of the matters of public interest identified by Musk. (FilmOn,
7 Cal.5th at p. 150.)
2. Protected Activity—Matter Pending Before Court
Musk next argues his statements are protected because they were
written “in connection with an issue under consideration or review by a
legislative, executive, or judicial body” as required by section 425.16,
subdivision (e)(2). He asserts the statements relate to both the ongoing Page 9 restraining order litigation as well as Hothi’s threatened malicious
prosecution action.
A statement is “in connection with” litigation if it “relates to the
substantive issues in the litigation and is directed to persons having some
interest in the litigation.” (Neville v. Chudacoff (2008) 160 Cal.App.4th 1255,
1266 (Neville).) Likewise, communications in connection with anticipated
litigation are considered to be “ ‘ “under consideration or review by a . . .
judicial body.” ’ ” (Flatley v. Mauro, supra, 39 Cal.4th at p. 319.)
First, we disagree the statements were in connection with the
restraining order litigation. At the time Musk sent his e-mail, Tesla had
dismissed the petition. While Musk argues the fee motion was still pending,
his statements in the e-mail to Greenspan did not relate to the “substantive
issues” in the fee motion—i.e., Hothi’s allegations that Tesla never intended
to prosecute the petition, as evidenced by Tesla’s refusal to produce any
evidence and questionable basis for dismissing the petition, and Tesla
utilized the litigation merely as a method of silencing Hothi. Nor were the
statements directed at “persons having some interest in the litigation.”
(Neville, supra, 160 Cal.App.4th at p. 1266.) Greenspan had no connection to
any of the parties involved in the restraining order litigation.
Second, the statements also did not relate to anticipated litigation.
Section 425.16, subdivision (e)(2) encompasses “communications in
connection with anticipated litigation.” (Neville, supra, 160 Cal.App.4th at
p. 1263.) “Accordingly, although litigation may not have commenced, if a
statement ‘concern[s] the subject of the dispute’ and is made ‘in anticipation
of litigation “contemplated in good faith and under serious consideration” ’
[citation] then the statement may be petitioning activity protected by
section 425.16.” (Id. at p. 1268.) Page 10 Musk argues his statements related to Hothi’s “demand letter”
threatening a malicious prosecution action in response to the restraining
order litigation. The letter at issue noted, “Tesla brought [the restraining
order] action in bad faith . . . .” Presumably, this comment references the
same issues raised in Hothi’s fee motion, namely, that Tesla never intended
to prosecute the petition and its questionable basis for dismissing the
petition. And, for the same reasons outlined above, Musk’s comments are not
related to these issues. Moreover, “[t]he phrase ‘in connection with’ [in
section 425.16, subdivision (e)(2)] implies that the statement must be aimed
at achieving the objects of the litigation.” (Anderson v. Geist (2015)
236 Cal.App.4th 79, 89.) Nothing in the record suggests Musk’s statements
were made with such intent.2 Accordingly, Musk’s statements were not “in
connection with an issue under consideration or review by a legislative,
executive, or judicial body.”III. DISPOSITION
The order is affirmed. Randeep Hothi may recover his costs on appeal.
(Cal. Rules of Court, rule 8.278(a)(1), (2).)
Musk asserts Hothi has not cited any authority for the proposition
that “threatening a bogus lawsuit is an exception to the general rule that
statements about threatened litigation are protected.” However, we note
some courts have held anticipated litigation that is legally barred is not
subject to the anti-SLAPP statute because such litigation does not qualify as
“litigation ‘contemplated in good faith and under serious consideration.’ ”
(See, e.g., Bailey v. Brewer (2011) 197 Cal.App.4th 781, 793.)
Having concluded that the conduct underlying Hothi’s cause of action
is not activity protected by the anti-SLAPP statute and that the statutory
procedure does not apply, Hothi was not required to show a probability of
prevailing on his claims. Therefore, we do not need to reach the second prong
of the anti-SLAPP analysis or address Musk’s argument regarding actual
malice. Because we affirm the trial court’s order denying Musk’s anti-SLAPP
motion, we deny Musk’s request for attorney fees. Page 11 MARGULIES, J.
WE CONCUR:
HUMES, P. J.
SANCHEZ, J.
AHothi v. Musk
PDF Page 1
PlainSite Cover Page
PDF Page 2
Filed 12/20/21 Hothi v. Musk CA1/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or
ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION ONE
RANDEEP HOTHI,
Plaintiff and Respondent,
v.
A162400
(Alameda County
Super. Ct. No. RG20069852)
ELON MUSK,
Defendant and Appellant
Plaintiff Randeep Hothi filed a complaint against defendant Elon Musk
alleging defamation in connection with an e-mail Musk sent to a third party
stating Hothi harassed and almost killed Tesla, Inc. (Tesla) employees. Musk
appeals from the trial court’s order denying his special motion to strike under
California’s anti-SLAPP statute, Code of Civil Procedure section 425.16. 1 We
affirm.
I. BACKGROUND
Hothi “developed an interest in Tesla’s business and, in particular, its
claims about its technology.” In connection with that interest, he created an
Such a motion is referred to as an anti-SLAPP motion. “An antiSLAPP motion seeks to strike a ‘[s]trategic lawsuit against public
participation,’ that is, a ‘SLAPP.’ ” (Wilson v. Cable News Network, Inc.
(2019) 7 Cal.5th 871, 882, fn. 2.) All statutory citations are to the Code of
Civil Procedure.
1
PDF Page 3
anonymous Twitter account and tweeted “skepticism” about Tesla’s
production and technology, including the automation of Tesla’s Model 3
vehicles.
In connection with his interest in Tesla, Hothi regularly posted photos
and videos of the Tesla Fremont factory parking lots and logistics lots. Hothi
placed and removed remote cameras in the Tesla lots, attempted to speak
with Tesla employees, and followed and recorded a Tesla test vehicle while it
was being driven on public roads.
Hothi’s vehicle also was observed in a parking lot of Tesla’s factory.
When two security officers approached to deliver a verbal notice of trespass,
Hothi drove out of his parking spot. One of the officers reported that “the
driver’s side of [Hothi’s] vehicle made contact with [the officer’s] left knee”
while Hothi exited his parking spot. Hothi asserted he did not believe his
vehicle made contact with the officer.
Tesla filed an ex parte petition for a temporary restraining order
against Hothi. The petition alleged Hothi dangerously swerved his car
toward the Tesla test vehicle he had followed. The petition also asserted
Hothi drove recklessly when leaving the Tesla lot, which resulted in a
security guard suffering “minor injuries.” The trial court granted a
temporary restraining order. Prior to the hearing on Tesla’s request for a
permanent restraining order, Hothi requested discovery from Tesla. The
court granted Hothi’s request. Tesla withdrew its petition rather than
produce the requested discovery. The court dismissed the case on July 26,
2019, and Hothi sought attorney fees.
Thereafter, Aaron Greenspan, who operates a website posting news
about various corporations and the legal system, engaged Musk in an e-mail
exchange. As part of that exchange, Greenspan informed Musk “the way
2
PDF Page 4
your organization has treated . . . Randeep Hothi—among others—is truly
shameful, and has exemplified anything but openness.” Musk replied in
relevant part: “As for the people you mention below, they have actively
harassed and, in the case of Hothi, almost killed Tesla employees. What was
a sideswipe when Hothi hit one of our people could easily have been a death
with 6 inches of difference.” Greenspan published his exchange with Musk
on his Twitter account.
Hothi subsequently filed a lawsuit against Musk alleging one count of
defamation based on Musk’s e-mail to Greenspan. In response, Musk filed a
motion to strike pursuant to section 425.16. Musk alleged the claim arose
from Musk’s speech on an issue of public interest and a matter pending
before the court. Musk further asserted Hothi failed to demonstrate a
probability of success because Hothi could not demonstrate the statements
were false or made with malice.
Hothi opposed the motion. He disputed Musk’s claim that the
statements were in connection with an issue of public interest or related to
any pending litigation. Hothi also asserted Musk’s statements constituted
defamation per se and were not subject to any valid defense or privilege.
The trial court denied the motion. It concluded Musk’s statements
were not protected by the anti-SLAPP statute because they did not relate to a
public issue and were not in connection with an issue before the court
because the prior petition had already been dismissed and the statements
were unrelated to the fee motion. The trial court further found there were
triable issues of fact as to the truth of Musk’s alleged defamatory statements
and whether Hothi can demonstrate malice. Musk timely appealed.
3
PDF Page 5
II. DISCUSSION
A. Relevant Law
“The anti-SLAPP statute applies only to a ‘cause of action . . . arising
from’ acts in furtherance of the defendant’s constitutional right of petition or
free speech in connection with a public issue.” (Martinez v. Metabolife
Internat., Inc. (2003) 113 Cal.App.4th 181, 186.) Section 425.16,
subdivision (e) identifies four categories of protected conduct: “(1) any
written or oral statement or writing made before a legislative, executive, or
judicial proceeding, or any other official proceeding authorized by law, (2) any
written or oral statement or writing made in connection with an issue under
consideration or review by a legislative, executive, or judicial body, or any
other official proceeding authorized by law, (3) any written or oral statement
or writing made in a place open to the public or a public forum in connection
with an issue of public interest, or (4) any other 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.”
The purpose of such motions is “to provide ‘for the early dismissal of
unmeritorious claims filed to interfere with the valid exercise of the
constitutional rights of freedom of speech and petition for the redress of
grievances.’ [Citation.] The statute is to ‘be construed broadly.’ ” (Simmons
v. Bauer Media Group USA, LLC (2020) 50 Cal.App.5th 1037, 1043.)
The analysis of an anti-SLAPP motion has two steps. (Park v. Board of
Trustees of California State University (2017) 2 Cal.5th 1057, 1061 (Park).)
In the first step, a court considers whether the defendant demonstrated that
“the act underlying the plaintiff’s cause fits one of the categories spelled out
in section 425.16, subdivision (e),” and is therefore protected activity. (Braun
v. Chronicle Publishing Co. (1997) 52 Cal.App.4th 1036, 1043.) “The
4
PDF Page 6
‘principal thrust or gravamen’ of [the plaintiff’s] claim determines whether
section 425.16 applies.” (Olive Properties, L.P. v. Coolwaters Enterprises, Inc.
(2015) 241 Cal.App.4th 1169, 1175.) If the defendant cannot make the
required showing, or “ ‘if the allegations of protected activity are only
incidental to a cause of action based essentially on nonprotected activity,’ ”
the anti-SLAPP motion must be denied. (Jackson v. Mayweather (2017)
10 Cal.App.5th 1240, 1251; see Flatley v. Mauro (2006) 39 Cal.4th 299, 317.)
If the defendant makes the required showing in the first step, the
burden shifts to the plaintiff in the second step to demonstrate “that there is
a probability that [he or she] will prevail” on the claim at issue. (§ 425.16,
subd. (b)(1).) In determining whether the plaintiff has carried this burden,
the court considers “the pleadings[ ] and supporting and opposing affidavits
stating the facts upon which the liability or defense is based.” (§ 425.16,
subd. (b)(2).) The plaintiff cannot, however, sustain its burden with
inadmissible evidence or new allegations and claims. (Kreeger v. Wanland
(2006) 141 Cal.App.4th 826, 831; see Hansen v. Department of Corrections &
Rehabilitation (2008) 171 Cal.App.4th 1537, 1547.)
“Only a [claim] that satisfies both prongs of the anti-SLAPP statute—
i.e., that arises from protected speech or petitioning and lacks even minimal
merit—is a SLAPP, subject to being stricken under the statute.” (Navellier v.
Sletten (2002) 29 Cal.4th 82, 89.) We independently review the denial of an
anti-SLAPP motion. (Park v. Board of Trustees of California State
University, supra, 2 Cal.5th at p. 1067.)
B. The Anti-SLAPP Motion
Musk first argues he satisfied the first prong of the analysis because
his statements related to both matters of public interest and matters pending
before the court. He then asserts Hothi did not satisfy the second prong
5
PDF Page 7
because he failed to demonstrate the statements were false or made with
malice. We disagree because Musk failed to demonstrate his statements
constitute protected activity.
1. Protected Activity—Matter of Public Interest
Musk first asserts the anti-SLAPP statute applies because his e-mail
related to a matter of public interest.
The California Supreme Court recently set forth the appropriate
analysis in FilmOn.com Inc. v. DoubleVerify Inc. (2019) 7 Cal.5th 133
(FilmOn). The court explained: “The inquiry under [section 425.16,
subdivision (e)(4)] . . . calls for a two-part analysis rooted in the statute’s
purpose and internal logic. 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. [Citation.] Second, we ask what
functional relationship exists between the speech and the public conversation
about some matter of public interest. It is at the latter stage that context
proves useful.” (Id. at pp. 149–150.)
Musk asserts Tesla’s manufacturing operations and technological
capabilities, the manner in which Tesla and Musk treat critics, and the
“$TSLAQ” group are matters of public interest. Even assuming these issues
are, in fact, matters of public interest, section 425.16, subdivision (e)(4)
“demands ‘some degree of closeness’ between the challenged statements and
the asserted public interest. [Citation.] . . . ‘[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.’ ” (FilmOn,
supra, 7 Cal.5th at p. 150.) Here, the defamation claim relates to two
sentences in Musk’s e-mail to Greenspan, which reads as follows: “As for the
people you mention below, they have actively harassed and, in the case of
6
PDF Page 8
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.”
These statements did not involve Tesla’s technology or operations, Musk and
Tesla’s treatment of critics, or the alleged $TSLAQ group. While the
complaint discusses Tesla’s operations, “[a]llegations of protected activity
that . . . ‘merely provide context, without supporting a claim for recovery,
cannot be stricken under the anti-SLAPP statute.’ ” (Ojjeh v. Brown (2019)
43 Cal.App.5th 1027, 1036.)
Musk asserts the exchange “furthered” the debate regarding Tesla’s
operations by highlighting Hothi’s “unreliable and improper methods for
obtaining his supposed information.” He also contends the statements about
Hothi’s “misconduct” relates to his and Tesla’s treatment of critics and
$TSLAQ’s goals of destroying Tesla. We disagree. There is no “functional
relationship” between the alleged issues of public interest and Musk’s
statements. (See FilmOn, supra, 7 Cal.5th at pp. 149–150.) For example,
Musk’s comment that Hothi harassed employees and hit and almost killed
employees does not relate to the reliability of Hothi’s information. Nor does
the statement refute Hothi’s comments about Tesla or assert Tesla’s past
treatment of Hothi was appropriate.
In Wilson v. Cable News Network, Inc., supra, 7 Cal.5th 871 (Wilson),
the California Supreme Court addressed whether a defamation claim
involving allegations of plagiarism related to an issue of public interest. (Id.
at p. 899.) Cable News Network, Inc. (CNN) argued in relevant part that a
journalist’s “professional competence,” “the reasons for his termination,” and
“journalistic ethics” were issues of public interest. (Id. at pp. 901, 902.) The
court rejected these arguments, explaining an “isolated plagiarism incident
did not contribute to public debate about when authors may or may not
7
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borrow without attribution. ‘What a court scrutinizing the nature of speech
in the anti-SLAPP context must focus on is the speech at hand, rather than
the prospects that such speech may conceivably have indirect consequences
for an issue of public concern.’ ” (Id. at p. 903.) The court concluded “CNN’s
privately communicated statements about [a journalist’s] purported violation
of journalistic ethics do not constitute ‘conduct in furtherance of . . . the
constitutional right of free speech in connection with a public issue or an
issue of public interest.’ ” (Id. at p. 904; see also Dyer v. Childress (2007)
147 Cal.App.4th 1273, 1280 [“The fact that ‘a broad and amorphous public
interest’ can be connected to a specific dispute is not sufficient to meet the
statutory requirements [of the anti-SLAPP statute].”].)
Here, as in Wilson, we must focus on the nature of the privately
communicated statements regarding Hothi’s alleged misconduct rather than
the potential of such speech to indirectly impact a matter of public interest.
However, Musk’s arguments do not focus on the nature of the statements but
rather on such indirect impact—i.e., countering allegations that Tesla and
Musk mislead the public about its technology and mistreat those who
criticize the company and addressing the actions of the $TSLAQ group.
Accordingly, the statement does not “ ‘contribute to the public debate’ ”
regarding any of the matters of public interest identified by Musk. (FilmOn,
7 Cal.5th at p. 150.)
2. Protected Activity—Matter Pending Before Court
Musk next argues his statements are protected because they were
written “in connection with an issue under consideration or review by a
legislative, executive, or judicial body” as required by section 425.16,
subdivision (e)(2). He asserts the statements relate to both the ongoing
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restraining order litigation as well as Hothi’s threatened malicious
prosecution action.
A statement is “in connection with” litigation if it “relates to the
substantive issues in the litigation and is directed to persons having some
interest in the litigation.” (Neville v. Chudacoff (2008) 160 Cal.App.4th 1255,
1266 (Neville).) Likewise, communications in connection with anticipated
litigation are considered to be “ ‘ “under consideration or review by a . . .
judicial body.” ’ ” (Flatley v. Mauro, supra, 39 Cal.4th at p. 319.)
First, we disagree the statements were in connection with the
restraining order litigation. At the time Musk sent his e-mail, Tesla had
dismissed the petition. While Musk argues the fee motion was still pending,
his statements in the e-mail to Greenspan did not relate to the “substantive
issues” in the fee motion—i.e., Hothi’s allegations that Tesla never intended
to prosecute the petition, as evidenced by Tesla’s refusal to produce any
evidence and questionable basis for dismissing the petition, and Tesla
utilized the litigation merely as a method of silencing Hothi. Nor were the
statements directed at “persons having some interest in the litigation.”
(Neville, supra, 160 Cal.App.4th at p. 1266.) Greenspan had no connection to
any of the parties involved in the restraining order litigation.
Second, the statements also did not relate to anticipated litigation.
Section 425.16, subdivision (e)(2) encompasses “communications in
connection with anticipated litigation.” (Neville, supra, 160 Cal.App.4th at
p. 1263.) “Accordingly, although litigation may not have commenced, if a
statement ‘concern[s] the subject of the dispute’ and is made ‘in anticipation
of litigation “contemplated in good faith and under serious consideration” ’
[citation] then the statement may be petitioning activity protected by
section 425.16.” (Id. at p. 1268.)
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Musk argues his statements related to Hothi’s “demand letter”
threatening a malicious prosecution action in response to the restraining
order litigation. The letter at issue noted, “Tesla brought [the restraining
order] action in bad faith . . . .” Presumably, this comment references the
same issues raised in Hothi’s fee motion, namely, that Tesla never intended
to prosecute the petition and its questionable basis for dismissing the
petition. And, for the same reasons outlined above, Musk’s comments are not
related to these issues. Moreover, “[t]he phrase ‘in connection with’ [in
section 425.16, subdivision (e)(2)] implies that the statement must be aimed
at achieving the objects of the litigation.” (Anderson v. Geist (2015)
236 Cal.App.4th 79, 89.) Nothing in the record suggests Musk’s statements
were made with such intent.2 Accordingly, Musk’s statements were not “in
connection with an issue under consideration or review by a legislative,
executive, or judicial body.”3
III. DISPOSITION
The order is affirmed. Randeep Hothi may recover his costs on appeal.
(Cal. Rules of Court, rule 8.278(a)(1), (2).)
Musk asserts Hothi has not cited any authority for the proposition
that “threatening a bogus lawsuit is an exception to the general rule that
statements about threatened litigation are protected.” However, we note
some courts have held anticipated litigation that is legally barred is not
subject to the anti-SLAPP statute because such litigation does not qualify as
“litigation ‘contemplated in good faith and under serious consideration.’ ”
(See, e.g., Bailey v. Brewer (2011) 197 Cal.App.4th 781, 793.)
2
Having concluded that the conduct underlying Hothi’s cause of action
is not activity protected by the anti-SLAPP statute and that the statutory
procedure does not apply, Hothi was not required to show a probability of
prevailing on his claims. Therefore, we do not need to reach the second prong
of the anti-SLAPP analysis or address Musk’s argument regarding actual
malice. Because we affirm the trial court’s order denying Musk’s anti-SLAPP
motion, we deny Musk’s request for attorney fees.
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MARGULIES, J.
WE CONCUR:
HUMES, P. J.
SANCHEZ, J.
A162400
Hothi v. Musk
11