Wyer v. Tesla, Inc. et al. Document 14

California Court of Appeals
Case No. G062810
Filed October 5, 2023

Appellant's opening brief.

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Page 1 Court of Appeal, Fourth Appellate District, Division Three
Brandon L. Henson, Clerk/Executive Officer
Electronically RECEIVED on 10/5/2023 at 2:58:39 PM
Court of Appeal, Fourth Appellate District, Division Three
Brandon L. Henson, Clerk/Executive Officer
Electronically FILED on 10/5/2023 by Lilian De La Torre, Deputy Clerk
IN THE COURT OF APPEAL
OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT, DIVISION THREE
DAVID WYER,
Pro Per and Appellant,
v.
TESLA, INC.
Defendant and Respondent.
APPEAL FROM ORANGE COUNTY SUPERIOR COURT
RICHARD LEE, JUDGE  CASE NO. 30-2019-01118759-CU-OE-WJC
APPELLATE CASE NO: G
APPELLANT’S OPENING BRIEF
DAVID WYER, Pro Per and Appellant
8583 IRVINE CENTER DRIVE, #IRVINE, CA Dave@WyervsTesla.com
Page 2
Page 3 TABLE OF CONTENTS
TABLE OF AUTHORITIES......................................................................... GLOSSARY .................................................................................................. PERTINENT LAWS ..................................................................................... JURISDICTIONAL STATEMENT ............................................................ INTRODUCTION ....................................................................................... STATEMENT OF THE CASE ................................................................... PROCEDURAL HISTORY/DISCOVERY HISTORY.............................. LEGAL ARGUMENT ................................................................................ I. The Superior Court finalized a prejudicial arbitration decision based
on suppressed evidence, limited Witness testimony, denied discovery,
and reduced hearing time, which was biased and unfair. ........................ A.
Standard of Review ....................................................................
B.
The Elements of Action ..............................................................
C. The Court’s finalized judgment was based on prejudice,
suppressed evidence, and limited discovery........................................ CONCLUSION ........................................................................................... CERTIFICATE OF COMPLIANCE .......................................................... ATTACHMENTS ....................................................................................... Attachment 1 Notice of Termination of Legal Representation ............... Attachment 2 Check from Tesla Paid to JAMS for $165,180 ................ Attachment 3 Arbitrator flunked math .................................................... Attachment 4 Expert witness admits to being under influence ............... Attachment5 Tesla arbitration cases........................................................ Attachment 6 Falsified evidence ............................................................. Attachment 7 Amended post hearing brief..............................................
Page 4 TABLE OF AUTHORITIES
Cases
Ampex Corp v. Cargle (2005) 128 Cal.App.4th 1569, 1573. ...................... Angelia P., 28 Cal. 3d 908, 918 (1981) ....................................................... Armendariz v. Foundation Health Psychcare Services, Inc. (2000) Cal.4th....................................................................................................... Caldwell v. Paramount Unified School District, 41 Cal. App. 4th 189, (1995). ..................................................................................................... Christensen v. Superior Court (1991) 54 Cal.3d 868, 903, internal citation
omitted ............................................................................................... 21, Davidson v. City of Westminster (1982) 32 Cal.3d 197, 209 ...................... Evidence Code 1200 .................................................................................... Gonzales v. Interinsurance Exchange (1978) 84 Cal. App. 3d 58, 63 [Cal. Rptr. 28 ............................................................................................ Little v. Auto Stiegler, Inc. (2003) 29 Cal.4th 1064, 1081.) ........................ Malek Media Group LLC v. AXQG Corp. (2020) 58 Cal.App.5th 817,
review denied, (Mar. 30, 2021) ............................................................... Mooney v. Holohan, 294 U.S. 103, 112 (1935)........................................... Morgan v. Regents of Univ. of Calif (2000) 88 Ca1.4th 52, 69. ................. Napue v. Illinois, 360 U.S. 264 (1959) ....................................................... Passatino v. Johnson & Johnson Consumer Products, Inc. (9th Cir. 2000)
212 F.3d 493, 507.).................................................................................. People v. Hawkins (2002) 98 Cal.App.4th 1428, 1450 ............................... People v. Sanchez, 63 Cal. 4th 665 (20 16) ................................................ Royal Alliance Associates, Inc. v. Liebhaber (2016) 2 Cal.App.5th 1092 .. Tamaney v. Atlantic Richfield (1980) 27 Cal.3d 167, 170 .......................... Vinhnee (9th Cir. BAP, Dec. 16, 2005) 336 B.R. 437 ................................ Wherry v. Award Inc. (2011) 192 Cal.App.4th 1242 .................................. Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1042. ...................
Page 5 Young v. Horizon West, Inc. 220 Cal. App. 4th 1122, 1128 (2013). ............ Statutes
Ca. Civ. Proc. Code § 1294 ......................................................................... Ca. Civ. Proc. Code § 1294 1294.2............................................................. Cal. Bus. & Prof. Code §17200 Et Seq ....................................................... Cal. Code Civ. Proc. § 1282.4 ..................................................................... Cal. Code Regs. tit. 2 § 11076 ................................................................ 9, Cal. Labor Code § 1102.5(b) ....................................................................... Cal. Labor Code § 2802............................................................................... Cal. Labor Code §§201, 1182.12, 1194, 1194.2 ......................................... Cal. Labor Code §§201-203 ........................................................................ Caldwell v. Paramount Unified School Dist. (1995) 41 Cal.App.4th 189,
198. .......................................................................................................... California Civil Code Sections 54 - 55.2...................................................... California Code, Business and Professions Code - BPC § 4982 ................ California Labor Code § 1102.5 .................................................................. California Labor Code § 1102.6 .................................................................. California Labor Code § 232.5 .................................................................... Code of Civil Procedure - CCP § 527.8 ...................................................... Code of Civil Procedure, section 904.1, subdivision (a)(1) ........................ Gov. Code, ' 12926, subd. (i) ....................................................................... Gov’t Code §§12940 ................................................................................... Gov’t Code §12940(K) ................................................................................ Government Code §12940(k) ...................................................................... Labor Codes §§ 1102.5 & 1102.6 ............................................................... Penal Code § 422 PC ................................................................................... Pursuant to Code of Civil Procedure § 1285 ............................................... Pursuant to Code of Civil Procedure §1286.2 ............................................. section 15630 of the California Welfare and Institutions Code ..................
Page 6 Rules
Cal. Evid. Code § 1200................................................................................ Constitutional Provisions
Cal. Const., art. VI, § 10 .............................................................................
Page 7 GLOSSARY
Autism Spectrum Disorder - (ASD) is a complex neurodevelopmental
disorder that affects social communication and behavior. There are a wide
range of symptoms and varying degrees of impairment, and is referred to as
a "spectrum." Asperger syndrome is a form of ASD.
Key Features of Autism Spectrum Disorder:
1. Social Communication Challenges: People with ASD struggle with
understanding and verbal and nonverbal communication cues, such
as facial expressions, gestures, and tone of voice. They find
difficulty initiating and maintaining conversations, understanding
sarcasm or humor, and interpreting others' emotions.
2. Repetitive Behaviors: Individuals with ASD often engage in
repetitive or ritualistic behaviors, such as repeating certain phrases,
following specific routines, or displaying intense focus on particular
objects or topics.
3. Restricted Interests: Many individuals with ASD develop intense
interests in specific subjects, often to the exclusion of other topics.
These interests might be highly specialized about a particular
subject.
4. Sensory Sensitivities: People with ASD can be sensitive to sensory
stimuli, experiencing either heightened or diminished sensory
involving sensitivity to sensory input that can impact their daily
lives.
5. Different Levels of Functioning: ASD is a spectrum disorder,
meaning that individuals can have a wide range of abilities and
challenges.
Page 8 Hypertensive Crisis
A hypertensive crisis is a sudden, severe increase in blood pressure. The
blood pressure reading is 180/120 millimeters of mercury (mm Hg) or
greater. A hypertensive crisis is a medical emergency. It can lead to lifethreatening health problems.
Hypertensive crisis symptoms may include:
 Headache.
 Chest pain.
 Heart palpitations.
 Anxiety.
 Dizziness.
 Nosebleed.
 Vomiting.
 Diarrhea.
Page 9 PERTINENT LAWS
Disabilities
The Americans with Disabilities Act of 1990 (ADA) forbids
discriminating against a qualified person with a handicap in the workplace.
The ADA prohibits discrimination against people with disabilities in local
and state government services, as well as in public places, transportation,
and telecommunications.
The ADA forbids discrimination in all aspects of employment. The
Act also offers protection against discrimination as a result of a connection
to someone with a disability in your family, place of employment, social
circle, or in any other way.
Types of Disabilities
 Autism.
 Major depressive disorder.
 Post-traumatic stress disorder.
 Schizophrenia.
 Traumatic brain injury
Hypertension
Hypertension, or high blood pressure, is covered by California workers’
compensation. Workers whose high blood pressure leads to a stroke, heart
disease, or another injurious condition can recover workers’ comp benefits
if they can show that the disability or condition arose as a result of
workplace conditions.
California Civil Code Sections 54 - 55.(a) Individuals with disabilities or medical conditions have the same right
as the general public to full and free use.
(b) For purposes of this section:
Page 10 (1) “Disability” means any mental or physical disability as defined in
Section 12926 of the Government Code.
(2) “Medical condition” has the same meaning as defined in subdivision (h)
of Section 12926 of the Government Code.
(c) A violation of the right of an individual under the Americans with
Disabilities Act of 1990 (Public Law 101-336) also constitutes a violation
of this section.
Cal. Code Regs. tit. 2 § Age discrimination in the workplace is illegal for those who are years of age or older, according to the Federal Age Discrimination in
Employment Act of 1967. The Fair Employment and Housing Act forbids
employers from discriminating against job applicants who are 40 years of
age or older. Discrimination on the basis of age may be established against
employment agencies, labor organizations, and apprenticeship training
programs in which the state participates upon a showing that they have
engaged in recruitment, screening, advertising, training, job referral,
placement or similar activities that discriminate against an individual(s) age
40 or older.
Page 11 JURISDICTIONAL STATEMENT
The Superior Court of Orange County, as presided by Judge Richard
Lee, finalized the decision made by Hiro Aragaki based on this decision
made through JAMS arbitration. The Fourth Appellate District, Division
Three has jurisdiction to review the challenged decision under Cal. Const.,
art. VI, § 10. This appeal is from the judgment of the Orange County
Superior Court and is authorized by the Code of Civil Procedure, section
904.1, subdivision (a)(1).
Page 12 INTRODUCTION
About Me
1. Thank you for taking the time to read my brief. My name is
David Wyer. I am a 66-year-old man clinically diagnosed with
autism spectrum disorder. I was born on February 10, 1957, I
was over the age of 40 during the time of grievances. On or about
March 8, 2015, I was diagnosed with Asperger’s syndrome by
my board-certified psychiatrist. Asperger’s syndrome is a lifelong impairment, which I have had since childhood.
2. Asperger’s syndrome is an autism spectrum disorder 299.(F84.0). Those with Asperger's syndrome have suffered no
cognitive delay during their first 3 years of life and usually have
a “normal” IQ. Their IQ may be very high, and even in the
genius range.
3. In 2023, the CDC reported that an estimated 5,437,988 (2.21%)
adults in the U.S. have ASD. This statistic includes my wife, our
adult son, and me. All three of us have been clinically diagnosed
with this disorder.
Request for Appeal
4. In accordance with Ca. Civ. Proc. Code § 1294 1294.2, my
appeal shall be taken in the same manner as an appeal from an
order or judgment in a civil action. Upon an appeal from any
order or judgment under this title, the court may review the
decision and any intermediate ruling, proceeding, order or
decision which involves the merits or necessarily affects the
order or judgment appealed from, or which substantially affects
the rights of a party (me). The court may also on such appeal
review any order on motion for a new trial. This Court is the
Page 13 proper court to file this appeal and has the proper jurisdiction. I
am requesting an Appeal based on the de novo standard.
5. My case was filed in parallel in Orange County Superior Court in
2019. Wyer v. Tesla, Inc. et al. was arbitrated through JAMS
arbitration and Hiro Aragaki was the arbitrator. I was initially
represented by the Employee Justice Law Group. My attorney
and his paralegal were both “let go” from their employment two
weeks after losing my case. The law group terminated my
representation immediately thereafter. (See Attachment 1)
Pro Per Representation
6. I represent pro per. In my previous experience, my voice was lost
or mischaracterized. My narrative was misrepresented. Evidence
was suppressed. Upon termination, EJLG provided me with emails and communications exchanged between my former
counsel and Respondent’s attorneys from August 2019 through
May 2023. Respondent’s attorney repeatedly indicated that my
attorneys made technical errors in how my case was represented
and litigated, including missed deadlines for submitting
documents. I believe these errors placed at me risk.
a. Respondent’s attorneys cite such emails in their
Declaration in Opposition on Motion to Vacate, and
through reading these communications in their “native”
format. There are currently hundreds of pages to review in
my case including Protective Orders, which are for
“attorney’s eyes only.”
b. I have had very little control over the events that
transpired. I pray that during this Appeal Process, I am
granted the de novo standard of review.
Page 14 Initial Filing
7. My case was initially filed on December 17, 2019 and assigned
to Judicial Officer Richard Lee in Orange County Superior
Court. An amended complaint was filed on February 6, 2020. A
mandatory statewide stay-at-home order was issued on March 19,
2020 due to the COVID-19 Pandemic. Everybody involved in the
justice system was at significant risk from "business as usual";
Courts stumbled to a halt. While the impact of trial delays on
elderly plaintiffs is undeniably an example of justice delayed
being justice denied, I was compelled to turn to an alternative,
and possibly less-than-ideal, means of seeking justice as a result
of the COVID-19 associated case backlogs. It would be months
before Superior Courts would adjudicate.
8. Respondent’s attorneys compelled arbitration. My attorneys filed
an opposition to Tesla’s Petition to Compel Arbitration two days
after the deadline. The Court rejected the opposition and declined
to consider it. My recollection is that Judge Lee indicated that
there should be no limits placed on discovery after compelling
arbitration. There were limits.
Forced Arbitration
9. In an email my counsel sent to my JAMS case manager, he stated
state that “it has always been Claimant’s position that there is not
an enforceable arbitration agreement. It has always been
Claimant’s position that neither the SolarCity At-Will Agreement
nor the Tesla Transfer Agreement are arbitration agreements that
are enforceable against Claimant.”
10. Pursuant to Order No. 1, the Parties were to stipulate to whether
the arbitration clause contained in the Agreement, or in the
Page 15 SolarCity At-Will Employment, Confidential Information,
Invention Assignment, and Arbitration Agreement dated August
20, 2015 (the "SolarCity Agreement"), governs this proceeding.
This hearing did not happen prior to the Arbitration Proceeding.
No stipulation was forthcoming.
a. In order to clarify this matter, The Arbitrator convened a
post-Hearing telephonic conference to follow up on this
issue, during which “Claimant (I) clarified that he could
not so stipulate because he continued to maintain that both
the Agreement and the SolarCity Agreement were
contracts of adhesion. The Arbitrator concluded that the
arbitration clause contained in the Agreement governed.
He did not justify his decision by referencing any laws or
citing any case precedents. His decision to be arbitrary
and prejudiced.”
11. I have remaining concerns regarding the arbitration agreement
that was presented and decided upon. There are a couple of
points that concern me.
a. The arbitration language for the governing language is
obfuscated in the Direct Deposit section of the document.
b. I had no opportunity to challenge the language or ask
questions.
c. Unlike when I was hired at SolarCity, the transfer from
SolarCity to Tesla was an automated process. I was unable
to clarify the language, ask questions, or get for
assistance.
d. I did not actually sign the document.
12. As a vulnerable person with a disability who was over the age of
60 when I transferred, this agreement is unconscionable.
Page 16 Unconscionability is the “absence of meaningful choice on the
part of one of the parties together with contract terms which are
unreasonably favorable to the other party.” Armendariz v.
Foundation Health Psychcare Services, Inc. (2000) 24 Cal.4th.
“Procedural unconscionability may be proven by showing
oppression, which is present when a party has no meaningful
opportunity to negotiate terms or the contract is presented on a
take-it-or-leave-it basis.” Wherry v. Award Inc. (2011) Cal.App.4th 1242. California courts have recognized that the
right to pursue claims in a judicial forum is a substantial right
and arbitration may be waived where grounds exist for
revocation of the agreement. Young v. Horizon West, Inc. Cal. App. 4th 1122, 1128 (2013).
13. In order for a mandatory employment arbitration agreement to
stand, under Armendariz, five standards must be met.
a. Standard 1 - the employee does not bear any costs above
that which he or she would have to pay in court.
b. Standard 2 - adequate discovery should be allowed.
c. Standard 3 - all types of relief that would otherwise be
available in a non-arbitration forum.
d. Standard 4 – adequate judicial review should govern the
arbitration award.
e. Standard 5 – the arbitrator should be neutral. (Armendariz,
24 Cal.4th. at 103-113.) The Supreme Court subsequently
confirmed the minimum requirements set forth in
Armendariz also applied to employee non-statutory claims
for wrongful termination in violation of public policy.
(Little v. Auto Stiegler, Inc. (2003) 29 Cal.4th 1064,
1081.)
Page 17 Unmet Standards
14. In fulfilling these standards of forced arbitration, these standards
were not met.
a. In accordance with Standard 2, adequate discovery did
not occur. In Aragaki’s Analysis, Section IV. Analysis,
Aragaki argued in Doc 92 Confirm Contractual
Arbitration Award that in seeking a violation of the
FEHA, the claimant (me) had the burden to prove all
necessary facts by a preponderance of evidence. (See
Caldwell v. Paramount Unified School District, 41 Cal.
App. 4th 189, 198 (1995). He went on to argue that the
standard “simply requires the trier of fact to believe that
the existence of a fact is more probable than its
nonexistence.’” (In re Angelia P., 28 Cal. 3d 908, (1981).
b. The Arbitrator limited testimony, shortened the number of
days of the hearing, suppressed evidence, and relied on
testimony from Respondent’s attorney that she read into
the record during the arbitration proceeding. Key
witnesses were not allowed to testify. These prejudices
made it impossible to provide the necessary facts to prove
my case.
c. In accordance with Standard 4, adequate judicial review
did not occur. Rather than providing all of the evidence
for Judge Lee to review, evidence was suppressed, key
witnesses were not called, and time was limits were
arbitrarily imposed. Scores of exhibits were referenced in
court documents that were not submitted to the court, and
Page 18 many of the exhibits that were submitted were scans and
therefore not readily searchable by the court. This is
extremely confusing and obfuscating.
d. In accordance with Standard 5, the Arbitrator was not
neutral. He was provided on a list provided through
JAMS. He was not my attorneys’ selected choice, as he is
not a judge or practicing attorney. He was ultimately
selected by JAMS through a strike list, which Tesla’s
counsel advocated for. Before my arbitration could even
commence, Tesla paid arbitration fees in the amount of
$165,180 for past due services. (See Attachment 2)
e. Forced arbitration impacts historically marginalized
communities in ways that go beyond these adverse
impacts of forced arbitration. As a person with ASD, I am
part of a marginalized population. As an individual over
the age of 60, I am part of a second marginalized
population.
Finalization by Orange County Superior Court
16. David Wyer v. Tesla, Inc. was filed in Orange County Superior
Court. The presiding Superior Court Judge was Richard Lee, and he
ruled to confirm the JAMS arbitration award that the Arbitrator
rendered.
17. I believe that Judge Lee’s assumption was that the Arbitrator would
render an accurate, impartial, neutral, fact-driven decision based on a
thorough and non-prejudicial review of the evidence. Not so.
18. Judge Lee was not granted access to the evidence that he needed in
rule fairly. To find substantial prejudice, the court must first accept
the arbitrator's theory and conclude the arbitrator might well have
made a different award had the evidence been allowed.” Malek
Page 19 Media Group LLC v. AXQG Corp. (2020) 58 Cal.App.5th 817,
review denied, (Mar. 30, 2021).
19. Further, Superior Court Judge Richard Lee finalized an arbitration
award that was rendered by Arbitrator Hiro Aragaki in a JAMS
arbitration proceeding on April 21, 2023. Arbitration practice is
governed by statutes, rules and contracts, and arbitrators are
answerable to the courts. These standards are adopted under the
authority of Code of Civil Procedure section 1281.85 and establish
the minimum standards of conduct for neutral arbitrators who are
subject to these standards, which are intended to guide the conduct
of arbitrators, to inform and protect participants in arbitration, and to
promote public confidence in the arbitration process.
Prejudice
20. In Doc 123 Declaration Opposition on Motion to Vacate,
Respondent’s attorney argued that I was given time to consider the
offer and terms of employment contained therein. Not so. I had to
make an immediate decision to retain my employment or lose my
job if I didn’t check a box. I was not able to fully access or retain or
even print this document at the time I transferred despite
Respondent’s argument.
21. The Arbitrator reduced the evidentiary hearing from ten days to five
days, making it prejudicial for me to call the witnesses that I sought
to depose but was not permitted to. The Arbitrator’s position that
pre-trial depositions are not necessary was clearly prejudicial. The
Arbitrator stated, “we’re the only country in the world that does
prehearing depositions, everyone else responds to the witness for the
first time at a trial.” (RT 29:3—30:2).
a. I was born in the United States. I live in the state of
California. I prefer not to waive my rights as a native
Page 20 born U.S. citizen to due process based on the laws or
protocols of other countries.
22. The evidence that was presented was obfuscated, mislabeled,
scanned, and the Bates stamps were not consistent with how the
numbers were assigned, which meant the Arbitrator would have had
to sift through every document in order to render a decision.
Arguably he did not take the time to do this and stated as much.
23. My argument for an appeal does not bring Judge Lee’s judgment
into question. Judge Lee was not allowed to properly evaluate
evidence and testimony due to the Arbitrator’s refusal to allow Judge
Lee this opportunity. The Superior Court made a ruling based on a)
inadequate evidentiary support, b) mischaracterizations,
c) unfounded assumptions, and d) inadequate discovery.
24. The Arbitrator stated during the proceeding that he was not a judge
or full-time Arbitrator. He has not actively practiced law for more
than 10 years.
a. During my proceeding, Aragaki was employed as a fulltime professor for Loyola Marymount.
b. As a full-time professor, by institutional policies, Mr.
Aragaki is a mandated reporter. Under section 15630 of
the California Welfare and Institutions Code, mandated
reporters are legally bound to report misconduct. If at any
time there is a conflict of interest between his role as a
professor and his role as a part-time arbitrator, he had a
duty to report potential misconduct.
c. His professional affiliation as a full-time professor
assumes that he was regularly engaged in substantial
business, professional, or other activities in the State of
Page 21 California in accordance with Cal. Code Civ. Proc. §
1282.4.
25. During the first day of the arbitration proceeding of Respondent
Mahadevan Virudhagiri’s testimony, Aragaki voluntarily stated that
he flunked college math. (Attachment 3, p. 7, line 22-23).
b. Aragaki states publicly that he earned his B.A. at Yale
University.
c. Loyola Marymount’s information page about the
Arbitrator stated that he earned his B.A. from the
University of Virginia.
d. I am literal in my communication style. These selfadmissions potentially bring the Arbitrator’s credibility
into question particularly pertaining to any monetary
award which prejudicially favored Tesla.
e. I am concerned that information pertaining to Arbitrator’s
background may contain false information. If true, this
would also be a violation of Cal. Code Civ. Proc. §
1282.4.
26. Before my case could proceed in JAMS, and as a result of a Motion
for Ex Parte, in order for Tesla to bring past arbitration bills current,
Respondent’s attorney Susan Arduengo submitted a copy of a check
for $165,180 that was signed by Zachary Kirkhorn, who was Tesla’s
CFO at that time.
f. This check for $165,180 is in the Record for Appellate
Review and is noted as Document 70, Exhibit D.
g. The copy of the check for $165,180 persists. I did not
have $165,000 to initiate this proceeding. Had Tesla not
produced this check, my proceeding would have gone to
ex parte for summary judgment.
Page 22 h. Tesla has an ongoing contract with JAMS, and arguably
pays substantial amounts of money to JAMS for favorable
prejudicial outcomes.
i. These prejudices caused me ongoing emotional suffering
and were essentially an extension of the discrimination
that I experienced in the workplace. I continue to
experience loss of enjoyment of life, sleeplessness,
depression, anxiety, other emotional distress that are
severe enough to require ongoing care from my boardcertified psychiatrist. (Christensen v. Superior Court
(1991) 54 Cal.3d 868, 903, internal citation omitted.)
27. The Arbitrator based his decision primarily on unchallenged hearsay
evidence resulting in evidentiary and procedural limitations that
were highly prejudicial.
j. Statements made by Tesla’s witnesses went unchallenged
due to artificially imposed time constraints.
k. Rebuttals, evidence, witness testimonies, and additional
discovery would not only have affected the rendered
judgment but also may serve to eliminate public safety
issues which were mischaracterized by the Respondent’s
attorney and accepted as fact by both the arbitrator and the
Court.
28. Respondent’s attorneys made libelous attacks on my personal
character and integrity including that I am a malingerer and paranoid
schizophrenic. These character assassination claims persist in the
record and are publicly available to anyone who wants to read them.
These statements are highly prejudicial against me and can be
generalized to the autism community.
Page 23 l. Their counsel hired a retired, non-practicing psychiatrist,
James Rosenberg to make slanderous claims.
m. Psychiatrist Rosenberg no longer has hospital privileges.
He stated that he has a couple of patients for whom he
continues to do pro bono work.
n. During testimony, he was agitated and combative. He selfadmittedly stated that he was under the influence prior to
his testimony. (See Attachment 4, p. 1423, Starting Line
12).
o. He admitted under oath that he was going to be paid
approximately $25,000 to represent Tesla in my case.
From an ethical perspective, fees should be consistent
with the law. Rosenberg should have refrained from
taking on a role when professional, legal, or financial
interests could impair his judgment, competence, or
effectiveness. My attorneys argued Dr. Rosenberg's
testimony should have been entirely stricken pursuant to
People v. Sanchez, 63 Cal. 4th 665 (20 16). Mr. Aragaki
overruled the Sanchez objection. In accordance with
California Code, Business and Professions Code - BPC §
4982, fees charged need to be consistent with the law.
Rosenberg was not operating within his scope of
competence. I did not have $25,000 to pay for expert
testimony.
p. Psychologist Jaqueline Nolan submitted a rebuttal
statement on my behalf. In her testimony she indicated
that she disagreed with “Dr. Rosenberg’s opinion;
functional impairment, prognosis, and future treatment
Page 24 needs or costs are entirely relevant, but were left
unaddressed in this evaluation.”
29. I have a clinical diagnosis of autism spectrum disorder 299.(F84.0) (Asperger syndrome). My wife has a clinical diagnosis of
Asperger syndrome. My stepson has full-blown autism. My
disability and age were not adequately represented to the Court. I
continue to suffer emotionally and physically from this ordeal.
30. The Court relies on sound judgment, fact-based evidence, and nonprejudicial decision-making when issuing an award – not hearsay,
biased supposition, and selective fact-finding. Due to the arbitrary
limitations the Arbitrator imposed, the Court was not able to fully
assess evidence, appraise eye-witness testimony, or properly
evaluate any other material evidence. Artificial and prejudicial
imposed limitations prevented me from having due process and
mitigated justice. I was never allowed to adequately present my case.
Denial of Due Process
1. As a lay person, the essence of Due Process for me is to expose “the
Truth, the Whole Truth, and Nothing but the Truth.” I took this oath
every time I was deposed or testified. The arbitration process failed
on all three counts. I was forced to present my case in a vacuum,
despite the fact that the evidence supporting my case was clearly
available. I was denied due process.
2. The Arbitrator acted prejudicially in favor of Tesla when he
arbitrarily limited the discovery and neglected to compel Tesla to
produce requested discovery documentation that was essential to my
case.
1. My case required a comparative analysis between me in relationship
to employees who were not terminated and those who replaced me.
Information requests needed to make that comparison went
Page 25 unfulfilled. Most of the documentation Respondent did produce was
redundant or heavily redacted rendering it useless. I had to
essentially surrender my HIPPA rights and private personal history
to fulfill Tesla’s discovery demands.
2. The arbitrator acted prejudicially in favor of Tesla when he sua
sponte limited the number of people my representation could depose.
i. I would have paid the costs of the depositions, but the
Arbitrator refused to allow me the opportunity to take
the necessary depositions.
ii. Palaneeswar Chittoor, is the software engineer that
replaced me within days of when I was illegally
terminated and is at least 25 years younger than me.
Replacing an older worker in multiple protected
classes with a younger worker is illegal. Cal. Code
Regs. tit. 2 § 11076.
iii. Witnesses included medical doctors, such as Drs.
Nathan Ford and Lorraine Sunday. Dr. Ford said
during his deposition conducted by Respondent’s
Attorney that he believed I was credible and truthful.
Given how the arbitration process was streamlined the
process, Judge Lee would not have had a chance to
evaluate their testimony either.
iv. Tesla was unable to produce a key witness – Jezebel
Serrano. She should have been called as the person
most knowledgeable.
3. The integrity of individuals who testified on behalf of Respondent
went unchallenged due to artificially imposed time constraints.
These witnesses were believed without question, whereas I was not.
I don’t understand why that is.
Page 26 From the Declaration of Christopher J. DeClue
1. On June 4, 2021 Arbitrator Hiro N. Aragaki signed the joint
stipulated discovery plan. The Joint Discovery Plan made it very
clear that I intended to call at least 8 witnesses at that early stage of
the litigation. The original witness list contained 16 potential
witnesses.
2. On February 16, 2022, Attorney Christopher DeClue requested an
expedited conference with the Parties and the Arbitrator to request
that the Arbitrator allow additional depositions. He provided a
detailed brief setting forth the additional depositions requested and
the reasons why they were necessary for my case.
3. On February 23, 2022, a telephonic hearing was conducted to
discuss Plaintiff’s (my) request to take further depositions and
Defendant’s request to shorten the number of hearing dates. A court
reporter was present for the conference.
4. Having considered the parties’ arguments during the hearing the
Arbitrator found no good cause for increasing the number of
depositions even though Plaintiff (my) informed the Arbitrator that
this matter was more complex than the ordinary single Plaintiff (my)
discrimination case. Moreover, the Arbitrator ordered the number of
days for Arbitration evidentiary hearings be shortened from ten days
to five days.
Arbitrator’s Potential Conflicts of Interest
1. At the onset of my arbitration case, Aragaki was employed as a
professor and faculty member of Loyola Marymount University,
which is located in Los Angeles, CA.
https://newsroom.lmu.edu/uncategorized/aragaki-hiro
2. In 2022, during the heart of my Arbitration case, Aragaki was hired
by UC Hastings / UC Law San Francisco as a Professor of Law and
Page 27 Director of the Center for Negotiation and Dispute Resolution.
https://uclawsf.edu/2022/06/24/uc-hastings-welcomes-professorhiro-aragaki-the-new-faculty-director-of-the-center-for-neg
and https://uclawsf.edu/people/hiro-aragaki/.
3. Given that LMU is in Southern California and UC Law San
Francisco is in Northern California, Aragaki was almost certainly in
the process of a moving while arbitrating my case. This would
explain why he chose to restrict discovery, depositions, the length of
my arbitration hearing, and the total number of hours my
representation had to question witnesses. He was busy running his
own life to be adequately concerned about mine.
a. Aragaki’s main residence address changed to San Francisco.
Moving requires time and focus and could have easily caused
distractions from the decision-making process.
b. Long distance moves and coming up to speed in a highprofile position with a new employer both demand
considerable time to execute.
c. I think that demands on the Arbitrator’s personal time
adversely affected his attention to my case.
d. Imposed time constraints, limited testimony, time taken to
move, and lack of due diligence resulted in a prejudicial
outcome that favored Respondent Tesla.
4. There was no way for me to rebut Respondent’s alleged defenses
and sift through the new information acquired for the first time
during the evidentiary hearing with the time limitations that the
arbitrator placed on this case. The arbitrator’s artificially imposed
limitations significantly prejudiced me at the outset and undeniable
evidentiary and procedural limitations favored Respondent.
Page 28 5. I also believe Aragaki had a conflict of interest from a financial
perspective.
a. It is highly unlikely I will ever be involved in a JAMS
arbitration case again, and my side only had to pay $7500 to
JAMS to initiate my case. On the other hand, Tesla is a repeat
JAMS customer that spends vast amounts of money for their
services. According to a document from JAMS I have in my
possession that is dated 2/10/2021, Tesla had retained their
services for 205 arbitration cases (120 closed, 85 open) and
46 medication cases (36 closed, 4 open). That’s a lot of
business (See attachment 5).
b. According to that same document, Aragaki charges $7500 per
day for a full day and $5500 per half day for his arbitration
services.
c. Had the Arbitrator held Respondents liable and awarded
economic, non-economic, and punitive damages to me, it
would have hurt JAMS’ business. This is prejudicial. I was
denied justice.
Factual Errors
1. There are factual errors that persist on which the Arbitrator rendered
his opinion and persist in his final judgment. I had no opportunity to
challenge erroneous testimony or fact check statements. The
Arbitrator was not familiar enough with the facts in my case to
describe events accurately. Inaccuracies remain on the Record.
Evidence was heavily suppressed. (i.e. Ongoing concerns regarding
suspected sabotage that was suppressed during the proceeding.)
2. By default, this erroneous evidence was taken as truth. Superior
Court Judge Richard Lee rendered his judgment based on erroneous
and unchecked facts. Many errors that exist in the record were based
Page 29 on hearsay evidence, which is often inadmissible in accordance with
Cal. Evid. Code § 1200.
Procedural Errors
1. Exhibits that were referenced and listed by Respondent’s
attorneys were not presented to the Superior Court for review.
2. The Superior Court was not able to fact-check or verify the
evidence referred to in defending Respondent’s case.
3. Respondent’s attorneys produced numerous documents that were
scans and unsearchable.
4. Respondent’s attorneys referred to other documents as being in
“native format.” Native documents are internal documents that
act as tangible evidence. Respondent’s attorneys produced
documents that were exported from various applications to
editable, and often heavily redacted Excel spreadsheets. These
were copied and pasted from originals and then altered. In
Vinhnee (9th Cir. BAP, Dec. 16, 2005) 336 B.R. 437, a
California bankruptcy appellate panel dealt stated that computergenerated, non-image documents are susceptible to challenge.
Computer printouts are self-authenticating (See Ampex Corp v.
Cargle (2005) 128 Cal.App.4th 1569, 1573.) California case law
has drawn a distinction between records that a computer
generates on its own and records that a human operator inputs
into the computer. (See People v. Hawkins (2002) Cal.App.4th 1428, 1450.)
5. There were two Rosetta MatterMost channels. Respondents
produced Excel spreadsheets copied and pasted from the public
channel, but not the private one. Source documents and audit
trails from MatterMost would have shown that they were edited.
Page 30 6. Given that these exhibits were referenced in the Record in
Superior Court by Respondent’s Attorney, Appellate Judges
should have the opportunity to review all of this evidence and
actual source files through the de novo standard of review.
7. Again, the Superior Court relied on evidence on which the origin
was not clearly defined. Evidence was suppressed,
misrepresented or otherwise mishandled. See Mooney v.
Holohan, 294 U.S. 103, 112 (1935). In Napue v. Illinois, U.S. 264 (1959). I was not allowed to take depositions that were
absolutely necessary to my case. The Arbitrator’s award was
abuse of discretion and substantially prejudiced my rights and
due process. The Superior Court granted and finalized the
Arbitrator’s award because the Superior Court was not made
aware of the significant prejudicial decision making that went
into it. Wyer v. Tesla, Inc. is a prima facie case.
Page 31 STATEMENT OF THE CASE
The heart of my case is that Tesla, Inc. illegally terminated me in
violation of the FEHA and well-established public policy.
More specifically, Tesla illegally fired me for the following reasons:
1) I have a disability (ASD and hypertension that required
emergency care).
2) I requested accommodations and unilaterally attempted to engage
in a good faith interactive process and was denied.
3) I am an older person. I was almost 62 years old when I was
illegally fired. I was replaced immediately (3-days-later) by a
software engineer who was approximately half my age.
Coworkers made comments about my age and indicated that I
was an “old man.”
4) I complained that Rollins and my co-workers were engaging in
sexual harassment and offensive communications referring to
their penis sizes on Tesla’s communications network. Also,
sexual videos of women twerking were placed in the team’s chat
that displayed women’s breasts. Reporting was required by
Tesla’s own Sexual Harassment and Bullying Training Program.
5) I was forced to open a workers’ compensation case for injuries I
sustained as a result of work. I was awarded $45,000 for this
claim.
6) Moreover, I was fired because I engaged in whistleblowing
regarding sexual harassment, sabotage, and other security issues.
Whistleblowing is a protected activity.
Key evidence and testimony regarding my claims were not allowed
to be presented, which is why I am requesting a de novo standard of review.
EJLG told me numerous times that my case was being staged for an appeal.
Page 32 However, right before the Appeal needed to be filed, my attorney and his
paralegal were both terminated from the firm that represented me.
Prior to my termination, I received exceptional and excellent marks
in my performance reviews. I had previously received raises and stock
bonuses. Tesla argued that they were engaging in a RIF. However, Tesla’s
attorneys argued that I was laid-off. Engaging in a RIF and then turning
around and hiring a young software engineer for 1.5 times my salary does
not align with Musk’s comments that he sent in an email in the middle of
the night the day I was fired.
Important Fundamental Facts
1. I do have Asperger syndrome, which is modernly referred to in the
medical community as autism spectrum disorder (“ASD”). I clearly
showed signs of ASD, including inability to pick up on social cues,
difficulty with nonverbal behavior, fixation on ritual or routines,
overly focused on work, unusual communication style, and
exceptional cognitive abilities. I am extraordinarily literal and rulebound. Due to my communication style, some people may misperceive that I engage in sarcastic behavior. I don’t.
2. When I first applied for the AutoCAD Software Engineer job at
SolarCity, I indicated I had a disability. I was never questioned about
it or asked if I needed any accommodations.
3. On or about August 31, 2018, I told Rollins that I have Asperger’s
syndrome. I attached the letter from my medical provider detailing
my symptoms. My symptoms of ASD include my inability to pick
up on social cues, difficulty with nonverbal behavior, fixation on
ritual or routines, overly focused on work, unusual communication
style, and extraordinary cognitive abilities.
4. In late-2018, I requested a good faith discussion regarding
accommodation options that would allow me to continue to perform
Page 33 at a high level, despite my ASD symptoms and ongoing medical
conditions, including extreme hypertension amidst an increasingly
difficult and hostile work environment. On October 1, 2018, I asked
Travis Wilson to be an “advocate” for me in the workplace.
5. When Rollins became my manager, my work product was
consistently described as exceeding expectations and achieving
excellence before I needed to seek emergency medical treatment for
work-related hypertension episodes that resulted in a workers’
compensation claim. Rollins asked me to still work despite needing
to go to the doctor. I sought treatment from my doctor, as well as
Respondent’s doctor.
6. My work product was consistently described as exceeding
expectations before I reported what I perceived to be potential
sabotage that I was concerned was a security and public safety risk.
Efforts to share my concerns were suppressed throughout the
arbitration process.
7. Respondent Rollins’s decision to terminate me was not questioned
by his department supervisor, despite the fact that Rollins did not
explain why I was selected for termination. Tesla hired a much
younger software engineer who does not have ASD or other medical
conditions that requires accommodations to work in my Pod
immediately (within 3 days) after I was terminated. Tesla paid for
his immigration fees from India, moving fees, and he was salaried up
to 1.6 times my salary. This fact was stipulated to during arbitration.
8. After I revealed my disability, I was excluded from important
discussions about my upcoming projects. Respondent ignored
requests to engage in necessary collaboration with my co-workers,
and ongoing isolation. I became anxious and worried that my job
was in jeopardy. It was.
Page 34 PROCEDURAL HISTORY/DISCOVERY HISTORY
My case was filed based on the grounds of discrimination (age and
disability), whistleblowing (potential public safety issue and sexual
harassment), and retaliation (reporting discrimination and potential
sabotage). In the original complaint there were 15 counts, which included
Discrimination in Violation of Gov’t Code §§12940 Et Seq.; Harassment in
Violation of Gov’t Code §§12940 Et Seq.; Retaliation in Violation of Gov’t
Code §§12940 Et Seq.; Failure to Prevent Discrimination, Harassment and
Retaliation in Violation of Gov’t Code §12940(K); Failure to Provide
Reasonable Accommodations in Violation of Gov’t Code §§12940 Et Seq.;
Failure to Engage in a Good Faith Interactive Process in Violation of Gov’t
Code §§12940 Et Seq.; For Declaratory Judgment; Wrongful Termination
in Violation of Public Policy; Negligent Supervision and Retention;
Intentional Infliction of Emotional Distress; Retaliation in Violation of
Labor Codes §§ 1102.5 & 1102.6 Failure to Pay Wages (Cal. Labor Code
§§201, 1182.12, 1194, 1194.2); Failure to Indemnify (Cal. Labor Code §
2802); Failure to Provide Itemized Wage Statements (Cal. Labor Code
§§201-203) and Unfair Competition (Cal. Bus. & Prof. Code §17200 Et
Seq.). Additionally, Tesla retaliated against me for whistleblowing (Cal.
Labor Code § 1102.5(b). Each of these counts have merit and can be
supported. Respondent served their answer to my first amended complaint
on December 1, 2020.
Depositions were taken from my former manager, Christopher
Rollins and co-worker, Carson Schafer - now terminated from Tesla.
Depositions were also taken the from Travis Wilson, who is a Staff Product
Manager. During his testimony, he was having an affair with Dayana Hijaz.
I reported Hijaz for making sexual comments “to get everyone in the
mood” and posted the twerking videos in the chat. Mahadevan Virudhahiri
was deposed. He now works for X. Senior Human Resources Manager,
Page 35 Allie Arebalo, who I had never met or interacted with was also deposed.
Ms. Jezebel Serrano should have been deposed. She would have been the
PMK regarding Respondent’s RIF and termination. I was told that is
“missing.” Additionally, an economist shared that my economic damages to
date were $1,100,000.00. I have no retirement. Much of my stock was
revoked before maturing. Medical experts testified as to the ongoing
ramifications of the mental suffering that I have experienced as a result of
my illegal termination. I suffer from PTSD, anxiety, depression, and other
health effects.
Factual Allegations / Topical Timeline
As a matter of course, I kept an involved timeline of the events that
transpired during my employment. I also have an expert-level eye witness
who kept a daily log of events that transpired.
1. March 8, 2015 - On or about March 8, 2015, I was diagnosed with
Asperger Syndrome (also referred to autism spectrum disorder) by
my board-certified psychiatrist. When I first applied for the Software
Engineer job at SolarCity, I checked the box that indicated I had a
disability. I was never questioned about it or asked if I needed any
accommodations.
2. September 8, 2015 - 2017, I worked at SolarCity as an AutoCAD
Software Engineer. I was a loyal and devoted employee. My work
performance was satisfactory and at times above-average. I was
successful at my job, and loved it. In late 2017, Respondent Tesla,
Inc. acquired SolarCity. My job duties and team did not change, but
Rollins replaced Mike Kicinski as my Manager. As a person with
ASD, this kind of change is difficult for me. I was informed that I
would begin working for Tesla immediately. I went through an
automated, paperless process to initiate the transfer. I never
interacted with a human during the transfer.
Page 36 3. December 17, 2015 through on or about January 18, 2019, I was
annually paid approximately $103,000.00.
4. August 24, 2018, Schafer created a cruel and violent post on the
Mattermost group communication system that said, “Kill the Dave.”
I protested. Schafer subsequently posted, “I meant it.” Despite
addressing my concerns with Rollins, he said that Schafer’s
statements and gifs about killing me should not be taken seriously.
Consequently, I feared for both my job and my safety. The death
threat that I reported was subsequently altered from “Kill the Dave”
to “Get rid of the Dave.” I can prove this. My statements about
felony evidence tampering were glossed over during arbitration.
5. August 24, 2018, Carson Schafer posted the “Kill the Dave” threat
40 minutes after I reported a “Commblocks” data table corruption
issue that had come to my attention. I later reported the data table
corruption as sabotage to Rollins and Serrano.
a. Tesla alleged that my claims were irrelevant and untrue.
Synonyms for “getting rid of” someone are “dispose of”,
“eliminate”, and “assassinate”. Penal Code § 422 PC defines
the crime commonly known as making criminal threats.
These are threats of death or great bodily injury that are
intended to or actually do place victims in reasonable and
sustained fear for their safety or the safety of their families. In
California, Penal Code§ 422 PC are typically prosecuted as a
misdemeanor or felony, not subverted in civil arbitration.
b. In accordance with California Code, Code of Civil Procedure
- CCP § 527.8, any employer, whose employee has suffered
unlawful violence or a credible threat of violence from any
individual, that can reasonably be construed to be carried out
or to have been carried out at the workplace, may seek a
Page 37 temporary restraining order and an order after hearing on
behalf of the employee and, at the discretion of the court, any
number of other employees at the workplace, and, if
appropriate, other employees at other workplaces of the
employer.
c. During the proceeding, Respondent’s attorney asked if I went
to law enforcement regarding these threats. No. I feared for
my job. I feared for my life. I did not want to bring further
attention to myself. Involving law enforcement would
certainly have ended my employment right away.
i. Other cases have been brought regarding
discrimination against Tesla. In 2022, California
regulators sued Tesla in state court, alleging the
company turned “a blind eye” to abuses. Respondent’s
CEO told workers to be “thick-skinned” about racial
harassment. Moreover, Respondent’s CEO has
apologized for publicly mocking a former Twitter
employee’s disability, but the online spat highlights
the struggles that vulnerable employees, including
those with disabilities, face in the workplace.
Arguably, I experienced structural bias and
discrimination.
ii. On September 29, 2023, the U.S. Equal Employment
Opportunity Commission (EEOC) filed a lawsuit
against Tesla, Inc. for alleged ongoing and widespread
racial discrimination. Tesla has also been charged for
alleged retaliation against Black employees who
attempted to speak out.
Page 38 6. June 4, 2019 – Falsified Evidence Tesla’s counsel, Jaime Bodiford
claimed that the “Kill the Dave” comment did not happen. She
sugarcoated and manufactured a document that she created and
altered with a last modified date of June 4, 2019 at 7:26 am. The
document was altered from “Kill the Dave” to “Get rid of the Dave,”
and was produced nearly a full year after I received the threat. In the
altered replication of the document that she created, she made a cut
and paste error. Time stamps were in the wrong order. The
document properties demonstrate that she was the author of the
document and last modified the document. This issue has been a
tremendous concern to me for a long time. I informed the court that
evidence had been altered (which I have proof of), but this felony
accusation was never addressed by anyone due to artificial time
constraints on imposed by the Arbitrator. This evidence was
suppressed. This is one reason why I am so adamantly opposed to
the Court’s decision. (See Attachment 6)
7. August 31, 2018, I told Rollins that I had Asperger’s syndrome. I
attached the letter from my medical provider detailing my
symptoms, including my inability to read social cues. Thereafter, I
was subjected to working conditions that excluded me from
important discussions about my upcoming projects, ignored requests
to engage in necessary collaboration with my co-workers, and was
isolated. I became anxious and worried that my job was in jeopardy.
a. Rollins made no attempt to accommodate my disability. He
isolated me socially. For a person with ASD, the only nonfamilial social interaction I received was from my colleagues.
b. From August 31, 2018 until I was illegally terminated, I was
subjected to working conditions that excluded me. My
requests for collaboration were callously dismissed.
Page 39 i.
Rollins controlled and managed all communications
regarding my social interactions with other members
of my team.
ii.
Rollins sabotaged my work product by injecting
untested code into my code branch that produced
compile 63 errors. His code would not run without
errors.
iii.
Rollins assigned tasks to me that were technically
impossible to perform in the scant timeframes he
demanded. These events increased my hypertension
into a medical workplace injury, for which I sought
medical treatment.
iv.
Rollins directed me to work after I was told to take
time off for the hypertensive crisis. This later caused
the workplace injury for which I received $45,000.
This payout indicates that I was credible, told the
truth, and experienced these events.
8. On or about September 20, 2018, I was subjected to harassment in
the form of inappropriate sexual posts on the MatterMost group
communication system. Respondent Rollins and Respondent Schafer
engaged in a vulgar discussion involving innuendos about their
“head” size, “curly hair on the head,” and Respondent Rollins stated
that he needed “a bigger helmet” for his head. I protested this lewd,
sexualized banter. In the chat, I privately requested that Respondent
Rollins and Respondent Schafer “Please stop this locker room talk.”
My complaint was ignored. I experienced additional harassment.
a. Hijaz posted two sexually suggestive videos, one of a scantily
clad woman twerking and baring her breasts. The lyrics in the
songs described the sex act. In MatterMost, she stated that she
Page 40 posted the songs to get others “in the mood.” I remain
dubious about what she was trying to get everyone in the
mood for.
b. During the arbitration proceeding, Respondent’s attorney
challenged my statements and indicated that these events
were taken out of context. She read testimony into the record
on behalf of Tesla, which Rhett Francisco objected to.
Respondent’s attorney was not present at the time. Her
testimony was hearsay. California's "hearsay rule," defined
under Evidence Code 1200, is a law that states that third-party
hearsay cannot be used as evidence in a trial. Hearsay is often
unreliable and cannot be cross-examined.
c. During the proceeding, Respondent’s attorney asked me if I
had ever personally seen either Rollins’ or Schafer’s heads or
had personal knowledge of their “head sizes.”
d. I had just watched a mandatory video about sexual
harassment requiring Tesla’s employees to report behavior
that was lewd, inappropriate, and could be construed as
potential harassment. The video trained viewers that if they
did not report that they were then part of the problem. I am
very rule-bound. I believed that if I did not report, I would get
in trouble. This behavior was very immature and
unprofessional. As a professional software engineer, I believe
that overt sexualization in the workplace environment
damages credibility. We were trying to sell solar panels, not
sex services.
9. September 21, 2018, I notified Serrano about this inappropriate
content being posted in the Mattermost communication system;
however, again, nothing was done.
Page 41 10. October 1, 2018, I informed Serrano of my Asperger Syndrome
diagnosis in writing while also reporting the harassment I was
experiencing.
a. I requested good faith accommodations to ease
tensions and clarify potential misunderstandings and
create a safe and productive environment.
b. Tesla made no attempts to accommodate my disability.
Respondent argued that a medical provider should
make the request. I was suffering retaliation and
harassment. I thought seeking advocacy from a doctor
or lawyer to request accommodations would lead to
more hostility. I wanted to do my work without having
my work sabotaged or experiencing retaliation.
c. In the aftermath of reporting and asking for
accommodations, Rollins restricted my
communications even more, excluded me from video
conference meetings, left me out of quarterly team
meetings, and took steps to sabotage my projects by
introducing untested code into a project he assigned to
me. His code would not run without errors.
11. October 1, 2018, I sent Travis Wilson a direct message in
MatterMost and asked if he would serve as an advocate for me. In
MatterMost, I wrote: “k. I have been clinically diagnosed as having
Asperger’s, and I am in the process of formally requesting
accommodations due to ongoing issues I am experiencing at Tesla
that are directly related to my disability. One of the accommodations
I am seeking is to have a designated advocate to work with, and I
would like that person to be you. I think you are absolutely
trustworthy, fair, and always have the best interests of the company
Page 42 in your mind, if I request that you be my advocate, would you be
willing to do this?” Wilson said no.
12. October 13, 2018, Rollins canceled my OLEDB project within days
of me finishing. This was an extremely complex and difficult task. I
worked nights and weekends in addition to my regular work hours.
Rollins scheduled a quality assurance database refresh during a
critical phase of the project without notifying me. The refresh
deleted a substantial amount of my work, which I had to recreate.
Rollins had just met with me in a one-on-one meeting. He did not
tell me about the refresh. When I had mostly completed the project,
Rollins canceled it on October 13, 2018. I reported to Serrano.
During the meeting, Rollins told Serrano that he had never
unilaterally canceled a project before. Rollins further retaliated
against me by not provide any assistance and cancelling further one
on one meetings. Rollins’ conduct made it apparent that he was
attempting to set me up for failure so I could be discharged for
performance reasons. I still don’t understand why Rollins hated me
so much that he would damage Tesla in order to destroy my career.
13. October 16, 2018 – I wrote an email and indicated that I understood
why the CommBlocks feature was so broken in a software product
called EdStar. CommBlocks was not the OLEDB project. The
contents of the table were continually being overwritten with bad
data. I not only reported this problem to the designer, Rollins, Malik,
and Ostermann, I also reported the issue to Ramya Makam and Ryan
Flores. At around 1:15 am every morning, a database script was
running code that caused the CommBlocks table to become corrupt.
I was worried that someone was sabotaging this database.
a. My manager, Rollins admitted to not wanting to support
EdStar, or the Commercial Solar Design Team.
Page 43 b. Designers reliant on an automated process were now forced to
enter data through human-driven data entry.
c. This human-driven process created an opportunity for human
errors to occur, which can lead to potential safety concerns
during the solar panel installation process on commercial
roofs.
14. October 24, 2018 – I met with Serrano and Shaan Murray Smith.
During the meeting, I requested formal “good faith”
accommodations to stop the harassment and discrimination.
Accommodations were never implemented. I also told them that
Rollins had introduced untested code into a project he had assigned
to me caused 63 compile errors and delayed completion of the
project. As a result of my efforts to get accommodations for my
disability, Rollins increased his retaliation and harassment.
15. October 30 / 31, 2018, I suffered a hypertensive crisis due to the
workplace harassment that I was subjected to. My BP was 188/110.
My pulse was 111. I saw two physicians. The physician I saw at
Kaiser Permanente stated that I should report the death threat to law
enforcement. He ordered me to take a week off. Respondent directed
me to see Dr. Lorraine Sunday. Dr. Sunday told me that she was
going to report the behaviors that I told her about to Tesla. She
described the following in her patient notes:
a. I was experiencing high levels of stress and anxiety
exacerbated by workplace discrimination, harassment,
retaliation and sabotage efforts.
b. I was over the age of 40 and had a diagnosed disability.
c. I was engaging in the protected activity of complaining about
Defendants’ discriminatory, harassing, and retaliatory
conduct.
Page 44 d. I reported that I was subjected to extremely time intense
projects with nearly impossible deadlines due to Defendants’
desire to sabotage, and eventually terminate me based on my
age, disability, and requests for accommodations.
e. I worked long hours including in the middle of the night to
code for projects when it was regular company protocol to
pair others with a co-worker to resolve arduous technological
issues or even check each other’s code.
16. On or about October 24, 2018, Rollins unduly reprimanded me for
suggesting that my fellow employees should be more professional.
Rollins responded by asking me if “[I] meant to be sarcastic.”
Rollins had been previously informed that due to my Asperger’s
syndrome, I may have “difficulty reading social cues, which may
lead others to misinterpret my direct responses as sarcastic or
condescending.”
a. I am a professional software engineer. I am a direct
communicator. I am very literal. I can never set anything
down.
b. I assumed that when Tesla’s HR department stated that sexual
harassment was against the law and against company policy
and should be reported.
c. I thought I was supposed to report lewd and sexually
provocative behavior.
d. I followed company policy. I reported.
e. Clearly, I was wrong, and paid a dear price for complying
with company policies.
17. November 8, 2018 – Rollins met with me regarding my
performance review. I asked him to record the review via Zoom.
Rollins recorded. He sent me the transcript. This evidence was
Page 45 brought up during the arbitration proceeding. Respondent’s Attorney
suggested that this information was faked and inadmissible.
18. November 19, 2018 – During the arbitration proceeding, a
document was shared that indicated that Rollins knew 60 days prior
to termination that I was going to be fired.
19. November 30, 2018 - Rollins met with me via Zoom and said I was
going to receive a $3000 raise and a $20,000 stock bonus despite my
less than stellar review and financial hardships Respondent’s CEO
said Tesla was experiencing at the time.
20. December 17, 2023 - Ramya Makam sent me a list of IP addresses
that were connecting to the server where the CommBlocks table
lived. In turn, I sent this list to Ryan Flores, who was a member of
the commercial design team. This list persists.
a. December 17, 2023 at 3:02 PM - I sent an email to Ryan
Flores, Standards Engineer, Energy Projects and stated that I
was aware that EdStar was not working, and that the database
table that holds CommBlocks data was being overwritten
with bogus data. I requested to meet with him confidentiality
because I feared sabotage. This issue had gone on for months.
b. December 17, 2023 at 3:26 PM – In an email, Flores agreed
that a “table being overwritten with garbage data sounds
extremely consistent with the symptoms I’ve seen! Also
consistent with you declaring it fixed two months ago, only to
have it break again the moment you turned your head. I have
been pretty baffled at where the data could even be coming
from, since it’s pointing to very specific drawings that don’t
seem to exist anywhere.”
c. December 17, 2023 at 4:08 PM – In my email to Flores, I
wrote: “I got this list of IP addresses that have been
Page 46 connecting to the server where that database lives from
Ramya Makam this morning. I don’t think I have the
wherewithal to get info from IT about any of these machines
and/or who they might belong to.”
d. In the meeting with Ryan Flores, I expressed concerns that I
thought sabotage was occurring.
21. December 18, 2018 – I had a one-on-one with Rollins. During the
one-on-one, I expressed my concerns about the CommBlocks table,
mentioned the IP addresses, and stated, “I am concerned about
sabotage.” My wife heard me make this comment because we work
in the same space and Rollins was on Zoom. Rollins defensively
stated, “What do you mean sabotage?” I said, “I mean I am
concerned about sabotage. The table is breaking in the middle of the
night via some sort of script that is being run by an account of an
employee who no longer works here.”
22. January 18, 2019 – Rollins fired me via Zoom one month to the day
after I told him I thought sabotage was occurring. During said
meeting, Serrano and Rollins informed me that I would be laid off
because my position was being eliminated. However, I was replaced
by an employee roughly half of my age three days later. I know this
because I put together a list of onboarding tasks for the new hire for
Rollins the day before my employment at Tesla was terminated.
Whistleblowing
I reported several incidences that can be defined as Whistleblowing.
Whistleblowing refers to when an employee “blows the whistle” on his or
her employer by reporting the employer’s misconduct. “[I]n order to
establish a prima facie case of retaliation under the FEHA, I must show (1)
he or she engaged in a ‘protected activity,’ (2) the employer subjected the
employee to an adverse employment action, and (3) a causal link existed
Page 47 between the protected activity and the employer’s action.” (Yanowitz v.
L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1042.)
California Labor Code § 1102.5 prohibits retaliation against
employees for reporting a company’s violation of the law. California Labor
Code § 1102.6 requires Tesla to prove, by clear and convincing evidence,
that my employment was terminated for legitimate, independent reasons
even if he had not engaged in any protected activity, such as reporting
illegal conduct. California Labor Code § 232.5 prohibits an employer from
terminating or retaliating against an employee who reported workplace
conditions. The causal link between an employee’s protected activity and
the employer's adverse action can be established by the proximity in time
between the two events. (Morgan v. Regents of Univ. of Calif (2000) Ca1.4th 52, 69.) Retaliatory intent as the cause for the termination may be
inferred when the adverse employment decision is close in time to the
protected complaint. (Passatino v. Johnson & Johnson Consumer Products,
Inc. (9th Cir. 2000) 212 F.3d 493, 507.)
Incident 1: Death threat
Workplace violence is any act or threat of physical violence,
harassment, intimidation, or other threatening disruptive behavior that
occurs at the work site. I reported the “Kill the Dave” threat. Additionally,
along with this threat, Schafer searched for the word “RIP” in the
MatterMost chat and posted a gif of a woman falling to the ground with the
words “Dead. Dead. Dead” flashing over her lifeless body. Schafer wrote “I
meant it.”
I reported this threat to Rollins. Rollins sent an email to Serrano
about this statement. However, he did not attach a screenshot of the
statement. Rollins explained this gif to HR as someone “fainting.” This
threat was later changed to “Get rid of the Dave.”
Page 48 This threat was altered by Jaime Bodiford, and sent in an email to
my former attorney Michael Robinson, which he forwarded to me. This
altered evidence contained a cut and paste error in which time stamps were
out of order. These time stamps were 15.34, 15.06, 15.33, 15.34.
Jaime Bodiford authored and modified this document on 6/4/2019 at
7:26 am. Carson Schafer made this threat to me on August 24, 2018. This
threat was made 40 minutes after Maira Malik asked me to fix an issue with
the commercial database.
Incident 2: Sexual harassment
At all times hereto, the FEHA, including in particular Government
Code §12940(k), was in full force and effect and was binding upon
defendants. This subsection imposes a duty on employers to take all
reasonable steps necessary to prevent discrimination, harassment, and
retaliation from occurring.
September 20, 2018 – Rollins and Schafer had a very inappropriate
conversation about “head sizes” in the MatterMost channel. Right after
Dave commented, Ms. Hijaz posted a very sexually provocative music
video in the chat. The video was in Spanish. Marc Artigas-Sanchez is from
Spain. This Mattermost post occurred after the morning’s stand-up.
1.
The chain of events were Rollins and Schafer discussed their
“head sizes” in writing.
2.
I asked them to stop because of the sexual connotations of
this issue.
3.
Marc Artigas-Sanchez resigned from Tesla, and his last day
was exactly two weeks after the videos appeared in
MatterMost. He was the best programmer in the Pod.
September 21, 2018 –Hijaz posted another sexually suggestive
video “to get everyone in the mood.” I reported to Serrano. Right after the
video was posted, Schafer took a screen capture of Hijaz during a Zoom
Page 49 session (without her permission) and posted same in Mattermost with the
caption, “Hey, Gurl.”
Incident 3: CommBlocks Sabotage
The programming group I belonged to created software used to
design residential and commercial solar energy systems. The commercial
product was named “EdStar”, which had a feature in it named
“CommBlocks”. This feature presented a list of approved mechanical and
electrical components to solar energy system designers they could pick
from to place into their designs. The list was populated by a database table
that was being updated regularly as part issues arose and/or building codes
from all across the country were updated. I wasn’t able to give this concern
my full-time attention, which is why the dates below are spread out in time
like they are.
1. On 8/24/2018, I received an email from Maira Malik that the
CommBlocks feature in EdStar was broken. Being the only software
engineer at Tesla who still had a working development environment
for that product on my system, I was assigned the task of fixing the
problem.
2. On 9/17/2018, I contacted IT to inform them that the CommBlocks
table “dropped” from the database, and requested that they restore
the table and my permissions to it.
3. On 10/16/2018, I sent an email to Rollins informing him I had
discovered the problem, which was that the records in that table had
been overwritten with junk data. On that same day, I fixed the
problem and a designer named Joshua Troglin comfirmed that the
feature was working properly again.
4. On 10/25/2018, I was informed the CommBlocks feature had
stopped working again, and discovered that the records in the
Page 50 CommBlocks database table had become corrupted again just like
before.
5. I worked with a database administrator named Ramya Makam to
investigate why this was happening, and with her help I discovered a
script was running on an automated basis every night around 1:am which overwrote whatever data was in the CommBlocks table
with bogus data. I stayed up one night and watched this happen.
Ultimately, I was able to obtain a list of IP address of machines that
had accessed that server, but I wasn’t allowed to track down who
those IP addresses belonged to. Also, there was no way of knowing
the scope of the hacking. Was it just this one table or more than that?
Was the attack coming from inside Tesla, or from outside? In my
mind, this was a huge security issue that potentially put the public at
risk. These IP addresses persist.
6. On 12/17/2018, I emailed an engineer named Ryan Flores to meet
with me the following day (12/18/2019) to discuss my findings. I
indicated I wanted to meet one-on-one with him because I believed
the database was being deliberately sabotaged.
a. Rollins had worked on the EdStar development team, so he
knew how the code worked and had access to it.
b. As a software engineering manager, Rollins had the privileges
necessary to create and run database scripts.
c. Rollins had indicated to me that he no longer wanted his team
to be responsible for supporting EdStar.
7. 1/18/2019 - One month to the day after I met with Ryan Flores and
reported the sabotage to him, Rollins retaliated through illegal
termination in a “layoff”.
Page 51 Age Discrimination
1. I was replaced three days after I was terminated by a worker who
was roughly half my age. This fact was stipulated to during the
arbitration proceeding.
2. Additionally, I was salaried at $100,000 per year. I was replaced the
following week by a worker half my age, and his starting salary was
$150,000 per year. The caveat in this situation was that
Respondent’s CEO sent an email on January 18, 2019 stating “we
unfortunately have no choice but to reduce full-time employee
headcount by approximately 7% (we grew by 30% last year, which
is more than we can support) and retain only the most critical temps
and contractors.” I was not a contractor.
a. I was an older worker with a disability, and I was replaced by
someone roughly half my age mere days after I was illegally
severed. Furthermore, he was paid 1.5 times my salary.
b. Tesla asserts that this person did not replace me. However,
they paid immigration fees and moving costs for Chittoor to
be hired after telling me that my job had been eliminated.
3. Tesla wobbled repeatedly on whether I was terminated in a
Reduction in Force or was Laid Off. As a RIF, in accordance with
Mr. Musk’s own words, Chittoor should not have been hired. In a
lay-off, it is illegal to fire a person with a disability and hide it in a
lay-off. Respondent’s Attorney asserted that the verbiage did not
matter. Words matter.
4. If a lay-off occurred instead of a RIF, then according to the WARN
Act, employers with 75 or more employees are required under this
Act to give 60 days' notice before shutting a facility or dismissing or more workers. I received no notice whatsoever. It was brutal.
Page 52 5. If an employer fails to comply, an employee may be entitled to
compensation for the earnings and benefits they missed while
waiting for the proper notification.
Disability Discrimination
1. Mental disabilities, include any mental or psychological disorder,
and is addressed in (Gov. Code, ' 12926, subd. (i).) Additionally, I
suffer from hypertension (Gov. Code, '' 12926, subd. (h), and 12940,
subd. (a).) The definition of "disability" under the FEHA includes
both physical and mental disabilities. Both of these conditions are
protected, if the employee is doing his or her job.
2. Despite these protections, historically and statistically, people with
ASD are unemployed and under-employed. So are older individuals
who work in technology fields. I have read that age discrimination is
rampant in Silicon Valley, which is where Tesla is located. My
prospects of finding a new job in my profession seemed dismal at
best. At the age of nearly 62, when I was illegally terminated from
Tesla, my fully autistic step-son was exclusively reliant upon me for
financial support. I shared this fact with my former teammates. This
is in the record. Terminating me brutally impacted my entire family.
Emotional Distress
3. My work is my identity and lifeblood. I was grief-stricken and
traumatized when I lost my job. It was the equivalent of losing my
purpose for being. My primary source of joy in life stems from my
work experiences. Additionally, I could no longer provide for my
family in terms of providing income and health insurance. I felt
useless. Losing my job impacted my relationships, damaged my selfworth, and injured my identity. I took great pride in working for
Tesla. I believed strongly in the mission, and as an older employee, I
brought a great deal of personal integrity, enthusiasm, passion, and
Page 53 professional experience to my role working for a company that I
thought was driven to building a sustainable future on Earth. Tesla
needs to run smoothly because the world is reliant on their products
and services. Hiding problems does not solve them. I was honored to
work there.
4. I suffered emotional damages which have persisted. I am clinically
diagnosed with posttraumatic stress disorder, generalized anxiety
disorder, unspecified, and major depressive disorder. I continue to
receive regular treatment from my psychiatrist. I still take an SSRI to
treat these issues. Losing my employment from Tesla has resulted in
a substantial loss of enjoyment of life, ongoing depression,
despondency, and damage to my self-esteem.
5. These events caused me significant emotional distress. The elements
of the tort of intentional infliction of emotional distress are: “(1)
extreme and outrageous conduct by the defendant with the intention
of causing, or reckless disregard of the probability of causing,
emotional distress; (2) the plaintiff's suffering severe or extreme
emotional distress; and (3) actual and proximate causation of the
emotional distress by the defendant's outrageous conduct.”
(Christensen v. Superior Court (1991) 54 Cal.3d 868, 903, internal
citation omitted.) Conduct was so extreme, it exceeded bounds of
that usually tolerated in a civilized community. (Davidson v. City of
Westminster (1982) 32 Cal.3d 197, 209.)
Page 54 LEGAL ARGUMENT
I.
THE SUPERIOR COURT FINALIZED A PREJUDICIAL
ARBITRATION AWARD BASED ON SUPPRESSED EVIDENCE,
LIMITED WITNESS TESTIMONY, DENIED DISCOVERY, AND
REDUCED HEARING TIME, WHICH WAS BIASED, UNFAIR,
AND VIOLATED PUBLIC POLICY
A. Standard of Review
1. What standard of review should be used in this Appeal?
Respectfully, the de novo standard of review should be used. Wyer
v. Tesla, Inc. et al. was litigated in Orange County Superior Court; Judge
Richard Lee presided. In parallel, my case was adjudicated through JAMS
arbitration. The Arbitrator rendered a prejudicial judgment favoring
Respondent Tesla. I was denied due process by the Arbitrator. The Superior
Court finalized the prejudicial award. Justice denied. The trial court based
its decision finalizing a prejudiced arbitration award that denied my right to
due process through limited discovery, limited testimony, allowing factual
inaccuracies to persist, and relying on hearsay statements that were
accepted as fact. I am appealing in accordance with Ca. Civ. Proc. Code §
1294.
Had I been afforded the opportunity to present my case without
prejudice, I would have been able to establish a violation of FEHA proving
all necessary facts by a preponderance of the evidence. (See Caldwell v.
Paramount Unified School Dist. (1995) 41 Cal.App.4th 189, 198.)
“Preponderance of the evidence” means evidence that what the party is
required to prove is more likely to be true than not true. (See CACI No.
200.) The preponderance-of-the-evidence standard “simply requires the
Trier of fact ‘to believe that the existence of a fact is more probable than its
nonexistence.'" (In re Angelia P. (1981) 28 Cal.3d 908, 918.)
Page 55 B. The Elements of Action
Reasons for my Appeal
The Court was denied the opportunity to view necessary evidence
for me to establish a prima facie case. When the Arbitrator could see that
Respondent was unable to meet the burden to articulate a legitimate nondiscriminatory reason for my termination in violation of public policy,
evidence was suppressed. (Cal. Government Code § 12940; Guz v. Bechtel
National, Inc. (2000) 24 Cal.4th 317, 354-365, citing McDonnell Douglas
Corp. v. Green (1973) 411 U.S. 792; Tamaney v. Atlantic Richfield (1980)
27 Cal.3d 167, 170.)
The Court finalized the arbitrator’s award predicated on a prejudicial
opinion, containing factual errors, and was heavily biased in favor of
Respondent in violation of public policy. The Arbitrator’s award didn’t take
these basic facts into consideration.
i.
The Arbitrator reduced the evidentiary hearing from 10 days
to 5 days.
ii.
The Arbitrator limited me to a mere 15 hours of examination.
iii.
Evidence referenced by Respondent’s Attorney in Court
documents was not presented for the Court’s review.
iv.
Misstatements persist in the Record and were not allowed to
be rectified or clarified.
v.
Key witnesses to support my case were missing, maligned, or
ignored.
Had the Arbitrator allowed proper evidentiary support, the Court
might have made a different award. Malek Media Group LLC v. AXQG
Corp (2020) 58 Cal.App.5th 817, review denied, (March 30, 2021)
Page 56 Did the Court render a prejudicial judgment based on biased
evidentiary support favoring Respondent?
Yes. The question before this Court is whether the Superior Court
rendered its final judgment on a prejudicial decision brought by the
Arbitrator in violation of public policy who abused his discretion when he
refused my request to conduct necessary discovery. Had proper evidentiary
support been allowed, a different result in arbitration could have rendered a
different outcome in the Superior Court. The Court worked with the
materials and documentation that were presented with the assumption that
evidence would be unbiased and fair. The Court assumed that the
Respondent’s narrative was accurate. It was not. The Arbitrator prevented
me from fairly presenting my case and prejudiced my rights as a result.
(Royal Alliance Associates, Inc. v. Liebhaber (2016) 2 Cal.App.5th 1092.
The award that was rendered was inconsistent with my statutory rights and
conflicts with public policy. (Moncharsh v. Heily & Blase, 3 Cal.4th (1992).
Did the Court have the authority to vacate the Arbitrator’s Award?
Yes. The Court had authority to vacate the arbitrator’s award.
Pursuant to Code of Civil Procedure § 1285, “[a]ny party to an arbitration
in which an award has been made may petition the court to confirm, correct
or vacate the award.” The Court confirmed the award that strongly favored
the Respondent. The arbitrator refused to hear evidence that was material to
my prima facie case. Pursuant to Code of Civil Procedure §1286.2 The
court has the ability to vacate the award if the court determines either of the
following:
The rights of the party were substantially prejudiced by the
refusal of the arbitrators to postpone the hearing upon
sufficient cause being shown therefor or by the refusal of the
arbitrators to hear evidence material to the controversy or by
Page 57 other conduct of the arbitrator contrary to the provisions of
this title.
Through the Arbitrator’s arbitrary decision making and artificially
imposed limitations key evidence was suppressed. The Court relied on the
Arbitrator’s judgment. Royal Alliance Associates, Inc. v. Liebhaber (2016)
2 Cal.App.5th 1092. There is an abundance of evidence to augment the
record that was referred to and not presented to the Court.
i.
The Court was led to believe that I lack credibility and
integrity.
ii.
The Court was not given the opportunity to learn reasonable
Discovery did not occur.
iii.
The Court was not given the opportunity to learn adequate
witness testimony did not occur.
iv.
The Court was not given the opportunity review evidence
presented during the JAMS arbitration proceedings.
Rather than vacate or correct the award, the trial court confirmed the
final judgment without being able to assess all of the facts and evidence
unshaded by limitations and prejudice. There was not adequate discovery.
Admission of evidence was not heard (Gonzales v. Interinsurance
Exchange (1978) 84 Cal. App. 3d 58, 63 [148 Cal. Rptr. 282.)
Did the Court have access to necessary testimony essential to make a
non-prejudicial decision?
No. The Court based its opinion on incomplete evidence, biased
misrepresentation of the facts, and did not have the opportunity to appraise
all of the record produced during arbitration. My attorneys asked for more
depositions at the outset of arbitration and again later when more
information was uncovered. After meager and insufficient document
production by Respondents during initial discovery and pre-hearing
depositions of the two individual defendants and a co-worker, testimony
Page 58 from additional witnesses became necessary to ensure my due process. My
attorney met and conferred with Respondents to resolve the issue.
Respondents refused to produce additional witnesses and the Arbitrator
prejudicially sided with the Respondents.
Additionally, more witnesses needed to be called, including Jezabel
Serrano, Ramya Makam, Ryan Flores, and Alex Poniz. Moreover, coworkers in my group were suddenly ranked higher than me after I reported
my disability and medical conditions, requested reasonable
accommodations, reported harassment in the workplace, and reported
sabotage, and requested medical attention through Tesla’s workers’
compensation medical provider network. The majority of witnesses who
were deposed no longer work for Tesla or seem to be “missing.”
Did the Arbitrator’s abuse of discretion influence the Court’s
judgment?
Yes. The Court rendered its decision based on the Arbitrator’s abuse
of discretion. In this case, the arbitrator initially set the evidentiary hearing
in this case for a 10-days. Two months before the evidentiary hearing, the
Arbitrator, sua sponte, reduced the evidentiary hearing from 10 days to days. The Arbitrator later limited me to a mere 15 hours of examination. I
needed the originally scheduled 10-days because the Arbitrator would not
permit my attorneys to take necessary depositions and would have to
examine witnesses for the very first-time during arbitration. The Court
relied on Aragaki to make non-prejudicial judgements. The Arbitrator was
prejudiced. The Court was not able to fully assess my case based on
prejudice in violation of public policy.
Page 59 C. The Court’s finalized judgment in Wyer v. Tesla, Inc. was based on
prejudice, suppressed evidence, and limited discovery in violation of
public policy.
The Court was unable to assess non-prejudicial evidence, testimony,
and artificial time constraints imposed by the Arbitrator. Prejudicial actions
taken by the Arbitrator included denying requests for additional discovery,
sua sponte, reducing my evidentiary hearing from 10 days to 5, limiting the
number of deponents to just 5, and restricting the overall examination time
a mere 15 hours.
Furthermore, the Arbitrator based his decision primarily on hearsay
evidence regarding Respondent’s assertions, resulting in evidentiary and
procedural limitations that were highly prejudicial. My rebuttals, evidence,
witness testimonies, and additional discovery would not only have affected
the rendered judgment but also may serve to eliminate public safety issues
which were mischaracterized by the Respondent’s attorney and accepted as
fact by both the arbitrator and the Superior Court. These issues likely still
persist, and should be examined.
Had the Arbitrator allowed proper evidentiary support, he might
have made a different award. Malek Media Group LLC v. AXQG Corp
(2020) 58 Cal.App.5th 817, review denied, (March 30, 2021). In the same
regard, had proper evidentiary support been allowed to be considered in the
Superior Court’s finalized judgment, a different outcome could have been
rendered in the Superior Court, as well. By refusing to hear evidence and
material facts, the Arbitrator made it impossible for me to have access to a
non-prejudicial outcome in Superior Court. The Court based its finalized
outcome on substantial prejudice. My rights to a fair litigation process
require a de novo standard of review.
Page 60 CONCLUSION
As I conclude, I thank you for taking the time to read this document
and consider my Appeal. I appreciate your time. I believe that I have
proven that the Superior Court Judge based his opinion on evidence that
was brought by Tesla and a prejudicial opinion rendered by the Arbitrator.
For the reasons argued above, the arbitrator’s award should be reversed.
Please find Respondents liable and award economic, non-economic,
and punitive damages, at the very least, as requested in Claimant David
Wyer’s Amended Post Arbitration Brief dated August 1, 2022. (See
Attachment 7)
Dated: October 5, By___________________________
David J. Wyer
Pro Per and Appellant
Page 61 CERTIFICATE OF COMPLIANCE
Pursuant to rule 8.204(c) of the California Rules of Court, I hereby
certify that this brief contains 13996 words, including footnotes. In
making this certification, I have relied on the word count of the computer
program used to prepare the brief.
By________________________
David Wyer, Pro Per
Appellant
Page 62 ATTACHMENTS
ATTACHMENT NOTICE OF TERMINATION OF LEGAL REPRESENTATION
Page 63 Attachment
Page 64 ATTACHMENT CHECK FROM TESLA PAID TO JAMS FOR $165,
Page 65 ATTACHMENT ARBITRATOR FLUNKED MATH
Page 66 ATTACHMENT EXPERT WITNESS ADMITS TO BEING UNDER INFLUENCE
Page 67
Page 68 ATTACHMENT TESLA ARBITRATION CASES
Page 69
Page 70 ATTACHMENT FALSIFIED EVIDENCE
Page 71 ATTACHMENT AMENDED POST HEARING BRIEF
Page 72 Court of Appeal, Fourth Appellate District, Division Three
Brandon L. Henson, Clerk/Executive Officer
Electronically FILED on 10/5/2023 by Lilian De La Torre, Deputy Clerk
PROOF OF SERVICE
STATE OF CALIFORNIA
California Court of Appeal, Fourth
Appellate District Division
STATE OF CALIFORNIA
California Court of Appeal, Fourth
Appellate District Division Case Name: Wyer v. Tesla, Inc. et
al.
Case Number: GLower Court Case Number: 30-2019-
1.
At the time of service I was at least 18 years of age and not a party to this legal
action.
2. My email address used to e-serve: dave@wyervstesla.com
3. I served by email a copy of the following document(s) indicated below:
Title(s) of papers e-served:
Filing Type
BRIEF - APPELLANTS OPENING BRIEF
Service Recipients:
Person Served
Keiko Kojima
Burke, WIlliams & Sorensen, LLP
Cheryl Johnsonhartwell
Burke, Williams & Sorenson
David Wyer
Orange County Superior Court
Document Title
Opening Brief(v08) DJW
Date /
Time
kkojima@bwslaw.com
e10/5/Serve 2:58:PM
cjohnsone10/5/hartwell@bwslaw.com
Serve 2:58:PM
dave@wyervstesla.com
e10/5/Serve 2:58:PM
eservicedcabriefs@occourts.org e10/5/Serve 2:58:PM
Email Address
Type
This proof of service was automatically created, submitted and signed on my behalf
through my agreements with TrueFiling and its contents are true to the best of my
information, knowledge, and belief.
I declare under penalty of perjury under the laws of the State of California that the
foregoing is true and correct.
Page 73 10/5/Date
/s/David Wyer
Signature
Wyer, David (Pro Per)
Last Name, First Name (PNum)
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