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Holland & Knight LLP
400 S. Hope, 8th Floor
Los Angeles, California 90071
Tel.: 213.896.2400 Fax: 213.896.2450
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HOLLAND & KNIGHT LLP
Sara A. Begley (Pro hac vice application forthcoming)
Christina Tellado (SBN 298597)
Samuel J. Stone (SBN 317013)
Mary Vu (SBN 323088)
400 South Hope Street, 8th Floor
Los Angeles, CA 90071
Telephone: 213.896.2400
Fax: 213.896.2450
E-mail: sara.begley@hklaw.com
christina.tellado@hklaw.com
sam.stone@hklaw.com
mary.vu@hklaw.com
Attorneys for Defendant
TESLA, INC.
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SUPERIOR COURT OF THE STATE OF CALIFORNIA
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COUNTY OF ALAMEDA
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SHARONDA TAYLOR, TATIANNA
SMITH, ZENOBIA MILLIGAN, and SHAKA
GREEN, individually and on behalf of all
aggrieved employees,
Plaintiffs,
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vs.
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TESLA, INC. doing business in California as
TESLA MOTORS, INC.; and DOES 1
THROUGH 50, INCLUSIVE,
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Defendants.
Case No.: 23CV028922
[Assigned to Judge Brad Seligman]
MEMORANDUM OF POINTS AND
AUTHORITIES IN SUPPORT OF
TESLA, INC.’S SPECIAL MOTION TO
STRIKE PLAINTIFFS’ COMPLAINT
WITHOUT LEAVE TO AMEND
PURSUANT TO CCP § 425.16
[Notice of Motion and Motion to Strike;
Declaration of Christina T. Tellado in
Support of Motion to Strike; Request for
Judicial Notice; [Proposed] Order Granting
Motion to Strike, Filed Concurrently
Herewith]
Date: June 20, 2023
Time: 9:15 a.m.
Location: Oakland Administration Bldg.
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Complaint Filed: March 07, 2023
Trial Date:
None Set
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RESERVATION NO.: 591993596536
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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO STRIKE PLAINTIFFS’
COMPLAINT WITHOUT LEAVE TO AMEND PURSUANT TO CCP § 425.16Page 2 TABLE OF CONTENTS
1
Page
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I.
INTRODUCTION ................................................................................................................... 1
4
II.
STATEMENT OF FACTS ...................................................................................................... 1
5
A.
Vaughn v. Tesla: Plaintiffs’ Counsel’s Discovery and the Stay of Proceedings ......... 2
6
B.
CRD v. Tesla: Plaintiffs’ Counsel’s Actions to Obstruct Tesla’s Discovery ............... 5
7
C.
Plaintiffs’ Counsel’s Abusive Personnel File Requests ............................................... 6
8
D.
Tesla Pushes Back, Again Invoking the Litigation Privilege and the Vaughn
Stay ........................................................................................................................
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E.
Plaintiffs’ PAGA Allegations ....................................................................................... 9
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Holland & Knight LLP
400 S. Hope, 8th Floor
Los Angeles, California 90071
Tel.: 213.896.2400 Fax: 213.896.2450
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III.
LEGAL STANDARD ............................................................................................................ 10
IV.
PLAINTIFFS’ ENTIRE PAGA COMPLAINT ARISES FROM TESLA’S
PROTECTED PETITIONING AND FREE SPEECH ACTIVITY ...................................... 12
V.
PLAINTIFFS HAVE NO LIKELIHOOD OF PREVAILING ON THE
COMPLAINT ........................................................................................................................ 13
14
15
16
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VI.
A.
The Litigation Privilege (Civ. Code § 47(b)) is an Absolute Bar to Liability ........... 14
B.
Leave to Amend Should Be Denied........................................................................... 15
CONCLUSION ...................................................................................................................... 15
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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO STRIKE PLAINTIFFS’
COMPLAINT WITHOUT LEAVE TO AMEND PURSUANT TO CCP § 425.16Page 3 TABLE OF AUTHORITIES
1
Page(s)
2
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Cases
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Baral v. Schnitt,
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400 S. Hope, 8th Floor
Los Angeles, California 90071
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28 1 Cal. 5th 376 (2016) ................................................................................................................... 13
Barry v. State Bar of California, 2 Cal. 5th 318 (2017) ................................................................................................................... 13
Bergstein v. Stroock & Stroock & Lavan LLP,
236 Cal. App. 4th 793 (2015) ...................................................................................................... 14
Briggs v. Eden Council for Hope & Opportunity, 19 Cal. 4th 1106 (1999) ............................................................................................................... 12
City of Colton v. Singletary,
206 Cal. App. 4th 751 (2012) ...................................................................................................... 15
Contreras v. Dowling,
4 Cal. App. 5th 774 (2016) .......................................................................................................... 11
Crossroads Invs., L.P. v. Fed. Nat’l Mortg. Assn.,
13 Cal. App. 5th 757 (2017) .................................................................................................. 12, 15
Damon v. Ocean Hills Journalism Club,
85 Cal. App. 4th 468 (2000) ........................................................................................................ 13
Equilon Enterprises v. Consumer Cause, Inc., 29 Cal. 4th 53 (2002) ................................................................................................................... 11
Feldman v. 1100 Park Lane Assocs.,
160 Cal. App. 4th 1467 (2008) .................................................................................................... 13
Fremont Reorganizing Corp. v. Faigin,
198 Cal. App. 4th 1153 (2011) .................................................................................................... 14
Galarasa v. Dolgen California, LLC,
No. F082404, _ Cal.App.5th _ ....................................................................................................... 9
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400 S. Hope, 8th Floor
Los Angeles, California 90071
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HMS Capital, Inc. v. Lawyers Title Co.,
118 Cal. App. 4th 204 (2004) ................................................................................................ 11, 13
Kashian v. Harriman,
98 Cal. App. 4th 892 (2002) ........................................................................................................ 14
Kyle v. Carmon,
71 Cal. App. 4th 901 (1999) ........................................................................................................ 11
Lambert v. Tesla,
No. 18-15203 (9th Cir. 2019) ........................................................................................................ 2
Martinez v. Metabolife Int’l, Inc.,
113 Cal. App. 4th 181 (2003) ...................................................................................................... 11
Navellier v. Sletten,
106 Cal. App. 4th 763 (2003) ...................................................................................................... 13
Navellier v. Sletten, 29 Cal. 4th 82 (2002) ............................................................................................................. 11, 12
No Doubt v. Activision Publishing, Inc.,
192 Cal. App. 4th 1018 (2011) .................................................................................................... 14
Salma v. Capon,
161 Cal. App. 4th 1275 (2008) .................................................................................................... 10
Silberg v. Anderson, 50 Cal. 3d 205 (1990) ............................................................................................................ 13, 14
Steiner v. Eikerling,
181 Cal. App. 3d 639 (1986) ....................................................................................................... 14
Taus v. Loftus, 40 Cal. 4th 683 (2017) ................................................................................................................. 11
Thayer v. Kabateck Brown Kellner LLP,
207 Cal. App. 4th 141 (2012) ................................................................................................ 11, 12
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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO STRIKE PLAINTIFFS’
COMPLAINT WITHOUT LEAVE TO AMEND PURSUANT TO CCP § 425.16Page 5 1
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400 S. Hope, 8th Floor
Los Angeles, California 90071
Tel.: 213.896.2400 Fax: 213.896.2450
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Tichinin v. City of Morgan Hill,
177 Cal. App. 4th 1049 (2009) .................................................................................................... 11
Tuchscher Dev. Enters., Inc. v. San Diego Unified Port Dist.,
106 Cal. App. 4th 1219 (2003) .................................................................................................... 11
Varian Med. Systems, Inc. v. Delfino, 35 Cal. 4th 180 (2005) ................................................................................................................. 11
Vaughn et al. v. Tesla, Inc.,
Alameda Superior Court Case No. RG17882082 ................................................................. passim
Viking River Cruises, Inc. v. Moriana, 142 S.Ct. 1906 (2022) ................................................................................................................ 8, 9
Wilcox v. Superior Court,
27 Cal. App. 4th 809 (1994) ........................................................................................................ 14
Statutes
15
Cal. Code Civ. Proc. § 425.16 .................................................................................................... passim
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California Private Attorneys General Act, Labor Code §§ 2698 et seq...................................... passim
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California Fair Employment and Housing Act ................................................................................ 2, 5
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Cal. Code Civ. Proc. § 1013(a) ............................................................................................................ 1
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Cal. Civil Code § 47(b) ................................................................................................................ 13, 14
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Cal. Labor Code § 1198.5(n) ...................................................................................................... passim
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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO STRIKE PLAINTIFFS’
COMPLAINT WITHOUT LEAVE TO AMEND PURSUANT TO CCP § 425.16Page 6 1
I.
Holland & Knight LLP
400 S. Hope, 8th Floor
Los Angeles, California 90071
Tel.: 213.896.2400 Fax: 213.896.2450
2
INTRODUCTION
Defendant Tesla, Inc. (“Tesla”) brings this special motion to strike Plaintiff Sharonda
3
Taylor, Shaka Green, Tatianna Smith, and Zenobia Milligan’s (collectively “Plaintiffs”) March 3,
4
2023 Complaint (“Complaint”) alleging one cause of action, for civil penalties pursuant to the
5
California Private Attorneys General Act (“PAGA”), Labor Code §§ 2698 et seq. The Complaint is
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entirely based on Tesla’s protected petitioning activity—following this Court’s orders and asserting
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a statutory privilege. The Complaint stylizes this as a supposed failure to produce to Plaintiffs their
8
personnel files and related documents. But, Tesla was producing exactly these files and it stopped
9
pursuant to Court order and a statutory privilege (Lab. Code § 1198.5(n)) to withhold production.
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Regrettably, this Action and the Plaintiffs are pawns in part of a larger scheme by their counsel,
11
Bryan Schwartz Law (“BSL”), to side-step the Court’s discovery orders in Vaughn et al. v. Tesla,
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Inc., Alameda Superior Court Case No. RG17882082 (“Vaughn” or the “Vaughn Action”), a class-
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action case BSL is also litigating against Tesla. The Complaint is silent about this to avoid the
14
obvious conclusion that it directly arises from Tesla’s protected petitioning and speech activity.
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At its heart, the Complaint is a strategic lawsuit against Tesla’s public participation. The
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sole basis for alleged liability is Tesla’s protected activity—respecting Court orders in Vaughn by
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staying production and discovery of personnel files, and invoking a statutory privilege to withhold
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production. As more fully discussed herein, the Complaint should be struck in full.
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II.
20
STATEMENT OF FACTS
This suit is the third of a trio of active suits against Tesla in which BSL is involved. The
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first is Vaughn, a putative class action alleging race discrimination against African-Americans by
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Tesla, among other claims. The second is DFEH v. Tesla, Inc. (“CRD” or the “CRD Case”),
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Alameda Superior Court Case No. 22CV006830, purportedly brought on behalf of a group of
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African-American employees. 1 The third is this Action. Plaintiffs in this case are putative Vaughn
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class members, and among the group of individuals for whom the CRD seeks to enforce certain
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Subsequent to filing, the Department of Fair Employment and Housing changed its name to the California
Civil Rights Department (“CRD”).
1
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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO STRIKE PLAINTIFFS’
COMPLAINT WITHOUT LEAVE TO AMEND PURSUANT TO CCP § 425.16Page 7 Holland & Knight LLP
400 S. Hope, 8th Floor
Los Angeles, California 90071
Tel.: 213.896.2400 Fax: 213.896.2450
1
rights in the CRD Case. In Vaughn, BSL issued personnel file requests for the Plaintiffs in this
2
Action. It is these personnel file requests which form the basis of Plaintiffs’ Complaint here.
Vaughn v. Tesla: Plaintiffs’ Counsel’s Discovery and the Stay of Proceedings 3
A.
4
On November 13, 2017, Marcus Vaughn (“Vaughn”), a former Tesla employee, filed a class
5
action complaint alleging race discrimination, race harassment, and failure to prevent discrimination
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under California’s Fair Employment and Housing Act (“FEHA”). (Request for Judicial Notice
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[“RJN”] in Support of Motion, Ex. 1.) Vaughn is represented by BSL. Id. Vaughn seeks to
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represent a class and subclass comprised of current and former African American contractors and
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employees working on the production floor at the Fremont factory from November 9, 2016 to final
10
judgment. Id. To say the case has been hotly litigated is an understatement. A summary of key
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dates in Vaughn relevant to this Motion are as follows:
12
•
March 2, 2020: Vaughn files a motion to compel discovery of handbooks, policies,
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training materials, and documents produced in Lambert v. Tesla, a private arbitration
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matter commenced upon being compelled to arbitration, see generally Lambert v. Tesla,
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No. 18-15203 (9th Cir. 2019), among other items; (RJN Ex. 2.)
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•
March 12, 2020: Vaughn files a motion to compel responses to document requests,
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interrogatories, and requests for admission, including demanding class-wide discovery;
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(RJN Ex. 3.)
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•
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Ex. 4.)
•
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June 5, 2020: The Court grants in part Tesla’s motion for a protective order and grants in
part Vaughn’s March 12, 2020 motion to compel interrogatory responses; (RJN Ex. 5.)
•
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May 13, 2020: Tesla files a motion for protective order re: class-wide discovery; (RJN
July 10, 2020: Vaughn files a supplemental motion to compel responses to documents,
interrogatories, and requests for admission; (RJN Ex. 6.)
•
September 30, 2020: The Court grants in part Vaughn’s July 10, 2020 supplemental
26
motion to compel. The Court orders Tesla to produce, among other items, any third
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party complaints and documents directly related to any resulting investigation and
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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO STRIKE PLAINTIFFS’
COMPLAINT WITHOUT LEAVE TO AMEND PURSUANT TO CCP § 425.16Page 8 1
discipline for third parties (employees/workers at Tesla) if that employee submits a
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“privacy waiver” authorizing production of such records; (RJN Ex. 7.)
3
•
4
5
allegations; (RJN Ex. 8.)
•
November 4, 2020 to March 12, 2021: Tesla, Vaughn, and a number of third-party
6
companies that provided contractors to Tesla are embroiled in motion practice regarding
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class discovery, subpoenas to the third parties and compelling production from the same,
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and other motion practice, all generally related to discovery of the identities of putative
9
class members and their employment records; (RJN Ex. 9.)
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Holland & Knight LLP
400 S. Hope, 8th Floor
Los Angeles, California 90071
Tel.: 213.896.2400 Fax: 213.896.2450
November 4, 2020: Tesla files a motion to deny class certification and strike class
•
April 26, 2021: The Court grants in part Vaughn’s February 10, 2021 motion to compel
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further production and interrogatories and Vaughn’s January 29, 2021 motion to compel
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compliance with third-party subpoenas; (RJN Ex. 10.)
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•
May 7, 2021: Vaughn files a First Amended Complaint purporting to represent African-
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American Tesla employees working on the production floor at the Fremont location
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from November 9, 2016 through final judgment who are not subject to arbitration
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agreements; (RJN Ex. 11.)
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•
June 16, 2021: The Court tentatively orders Tesla to produce, among other information,
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the names and contact information of persons with information responsive to Vaughn’s
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various interrogatories and the same for witnesses supporting Tesla’s affirmative
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defenses, and on June 30, 2021 issues a final order; (RJN Ex. 12.)
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•
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July 6, 2021: Vaughn files a Second Amended Complaint to name as co-plaintiffs
Monica Chatman (“Chatman”), Evie Hall (“Hall”) and Titus McCaleb; (RJN Ex. 13.)
•
July 20, 2021: Tesla files a motion for protective order regarding Vaughn’s demand for
24
production of all documents relating to any discipline imposed on any Tesla employee
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for using racially offensive language; (RJN Ex. 14.)
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•
July 26, 2021: Vaughn files another motion to compel production of documents; (RJN
Ex. 15.)
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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO STRIKE PLAINTIFFS’
COMPLAINT WITHOUT LEAVE TO AMEND PURSUANT TO CCP § 425.16Page 9 1
•
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Holland & Knight LLP
400 S. Hope, 8th Floor
Los Angeles, California 90071
Tel.: 213.896.2400 Fax: 213.896.2450
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August 2, 2021: Tesla files its motion to compel Chatman and Hall to arbitration; (RJN
Ex. 16.)
•
August 26, 2021: The Court partially grants Tesla’s July 20, 2021 motion but opens
4
discovery as to those “persons who signed [privacy] waivers and who were
5
complainants, subjects or witnesses regarding incidents during the class period.” The
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Court orders Tesla to produce files relating to 191 employees, for the 191 personnel file
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requests/privacy waivers Tesla already received, within three weeks. The Court also
8
establishes a framework for requests/production: each time Tesla receives an aggregate
9
of 100 additional file requests and waivers, it is required to produce such records within
10
days; (RJN Ex. 17.)
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•
12
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Chatman and Hall’s claims to arbitration; (RJN Ex. 18.)
•
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•
November 29, 2021: Tesla appeals the Court’s October 12, 2021 order partially granting
Tesla’s motion to compel arbitration, thus automatically staying the case; (RJN Ex. 20.)
•
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November 3, 2021: The Court grants Vaughn’s July 26, 2021 motion to compel
documents and further responses to discovery requests; (RJN Ex. 19.)
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October 12, 2021: The Court grants in part Tesla’s August 2, 2021 motion to compel
December 30, 2021: Vaughn sends Tesla another 50 personnel file requests and waivers;
(Declaration of Christina T. Tellado in Support of Motion [“Tellado Decl.”] ¶ 4.)
•
January 21, 2022: The Court grants Tesla’s motion for a stay pending appeal, staying
20
any remaining portions of Vaughn not impacted by the automatic stay on appeal; (RJN
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Ex. 21.)
22
•
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Around this time, BSL commenced threatening commencing this litigation for
purported failure to produce records; (Tellado Decl. ¶¶ 5-8.)
•
January 4, 2023: The Court of Appeal affirms the Court’s order granting the motion to
25
compel arbitration, and on April 12, 2023 the Court of Appeal issues a remittitur; (RJN
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Ex. 22.)
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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO STRIKE PLAINTIFFS’
COMPLAINT WITHOUT LEAVE TO AMEND PURSUANT TO CCP § 425.16Page 10 Holland & Knight LLP
400 S. Hope, 8th Floor
Los Angeles, California 90071
Tel.: 213.896.2400 Fax: 213.896.2450
1
•
April 18, 2023: BSL discloses at a case management conference that their firm
2
represents current and former Tesla employees whose statements are quoted in the
3
CRD’s Complaint and whom Tesla has noticed depositions of as percipient witnesses.
4
(Tellado Decl. ¶ 17.) It has already been confirmed that these witnesses are also putative
5
class members in Vaughn—i.e., African-American Tesla Production Floor employees.
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See, e.g., (RJN Ex. 23) (“In 2020, Worker 1 was identified as a putative class member
7
the Vaughn v. Tesla case, as he is a Black man who worked in production at Tesla’s
8
Fremont plant during the putative class period…”)
CRD v. Tesla: Plaintiffs’ Counsel’s Actions to Obstruct Tesla’s Discovery
9
B.
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On February 9, 2022, the CRD filed suit against Tesla generally alleging various FEHA
11
claims including race harassment; race discrimination in assignment, compensation, discipline,
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promotion; and failure to prevent discrimination, harassment and retaliation. (RJN Ex. 24.) On
13
March 11, 2022, CRD filed an Amended Complaint alleging thirteen causes of action, namely,
14
those above plus claims for unequal pay, wrongful waiver of rights, and failure to retain and
15
produce records. (RJN Ex. 25.) CRD purports to bring its Complaint on behalf of all African-
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American employees at Tesla’s Fremont factory. (Id.) Tesla counter-sued CRD for various
17
statutory violations. (RJN Ex. 26.)
18
A particular avenue of discovery Tesla continues to pursue relates to individuals whose
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statements are either referred to or directly quoted in CRD’s Complaint. To that end, on August 25,
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2022, Tesla issued deposition subpoenas to various individuals seeking their testimony in CRD,
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including “Worker 1”. (RJN Ex. 27.) On October 12, 2022, CRD moved to quash Worker 1’s
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deposition subpoena and Tesla subsequently withdrew the subpoena to Worker 1. (Id.) CRD’s
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October 12, 2022 Motion included a declaration from CRD stating that Worker 1 was represented
24
by private counsel for purposes of an administrative action before CRD but never identified
25
counsel. (Id.)
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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO STRIKE PLAINTIFFS’
COMPLAINT WITHOUT LEAVE TO AMEND PURSUANT TO CCP § 425.16Page 11 1
On October 17, 2022, Tesla contacted BSL to inquire whether it was authorized to accept
2
service of a deposition subpoena to Worker 1 in CRD. (RJN Exs. 28-29.) BSL did not respond.
3
(RJN Ex. 29.)
4
On February 17, 2023, Tesla re-served Worker 1 with a deposition subpoena in the CRD
5
case. (RJN Ex. 29.) Thereafter, CRD and Tesla met-and-conferred and Tesla again noted that it
6
had no confirmation Worker 1 was represented by private counsel. (Id.; Tellado Decl. ¶ 14.)
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CRD did not provide this information. (Tellado Decl. ¶ 14.)
8
On March 7, 2023, BSL emailed Tesla and CRD’s counsel that:
9
It has come to our attention that Tesla has issued subpoenas to individuals we represent
without serving us. Let this serve as notice of our objection to any/all subpoenas that
may have been served on the following clients of Bryan Schwartz Law and California
Civil Rights Law Group within the past month: [Redacted List] All of these
individuals have filed complaints of discrimination against Tesla with the California
Civil Rights Department (CRD) and BSL and CCRLG are their legal representatives
of record in those matters. Please ensure that any and all subpoenas directed to these
individuals and all communications relating to their claims against Tesla are timely
served on our offices. Of course, by accepting service, we are not conceding the
propriety of the subpoenas or any requests contained therein. We expressly reserve the
right to assert additional objections and/or move to quash the subpoenas once we
actually receive them.
Holland & Knight LLP
400 S. Hope, 8th Floor
Los Angeles, California 90071
Tel.: 213.896.2400 Fax: 213.896.2450
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(Tellado Decl. ¶ 15; RJN Ex. 30.)
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On March 8, 2023, Tesla offered to send copies of the subpoenas to BSL and to coordinate
18
deposition dates. (Tellado Decl. ¶ 16.) Before Tesla received a response, on March 9, 2023, CRD
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moved to quash Worker 1’s subpoena. (RJN Ex. 28.)
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On April 4, 2023, Tesla filed a Motion to Compel Compliance with Worker 1’s subpoena.
21
(RJN Ex. 29.) On April 17, 2023, BSL filed an Opposition to Tesla’s April 4, 2023 Motion to
22
Compel Compliance on Worker 1’s behalf. (RJN Ex. 30.) Therein, BSL invoked CRD’s
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(supposed) investigatory privilege as a basis for refusing to produce Worker 1 for a deposition in
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CRD. (RJN Ex. 30.)
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C.
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On April 26, 2021 Tesla received from BSL a personnel file request for “Sharonda Taylor”
27
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Plaintiffs’ Counsel’s Abusive Personnel File Requests
in connection with the Vaughn litigation. (Tellado Decl. ¶ 2.) On June 25, 2021 Tesla informed
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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO STRIKE PLAINTIFFS’
COMPLAINT WITHOUT LEAVE TO AMEND PURSUANT TO CCP § 425.16Page 12 Holland & Knight LLP
400 S. Hope, 8th Floor
Los Angeles, California 90071
Tel.: 213.896.2400 Fax: 213.896.2450
1
Plaintiffs’ counsel that it did not have any record of such employee on its roster. (Tellado Decl. ¶
2
3.) Shortly thereafter, the Vaughn Court heard a dispute between the parties regarding these
3
personnel file requests. To that end, on August 26, 2021 the Vaughn Court created a specific
4
process for submitting personnel requests (i.e., they had to come with a privacy waiver) and a
5
mechanism for Tesla to respond to the same. (RJN Ex. 17.) Three months later, on November 29,
6
2021, Vaughn was stayed on appeal. (RJN Ex. 20.)
7
Despite the stay, on December 30, 2021, Tesla received from BSL 50 personnel file
8
requests. (Tellado Decl. ¶ 4.) Each request enclosed a signed release (the “privacy waiver”) from
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the individual whose files were requested and a digital signature report entitled “Tesla Class Action:
10
Personnel Records Request and Privacy Waiver,” referring to Vaughn. (Tellado Decl. ¶ 4, Ex. 3.)
11
On January 18, 2022, despite the stay, BSL continued to complain about inadequate responses to
12
personnel files for individuals that were identified as putative class members, by name, in Vaughn.
13
(Tellado Decl. ¶ 5, Ex. 4.)
14
On February 4, 2022, Tesla responded to BSL’s January 18, 2022 correspondence and set
15
forth what was actually occurring: that the personnel file requests “circumvent the litigation
16
exception [to § 1198.5] and limits on discovery and the Court-ordered stay [in Vaughn].” (Tellado
17
Decl. ¶ 6, Ex. 5.) By that time, Tesla had already produced personnel files for 172 individuals
18
pursuant to authorized request as required by the Court and committed to continuing to work with
19
Plaintiffs’ counsel regarding responsive documents. (Tellado Decl. ¶ 6.)
20
Unbeknownst to Tesla, on February 9, 2022 BSL submitted correspondence to the
21
California Labor and Workforce Development Agency (“LWDA”) as a statutory prerequisite to
22
commence a PAGA action on behalf of Sharonda Taylor. (RJN Ex. 31.) The February 9, 2022
23
letter (“PAGA Notice”) alleged that Tesla’s production of personnel files was deficient. (Id.)
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On February 17, 2022, BSL sent Tesla another 50 requests for personnel files. (Tellado
25
Decl. ¶ 7, Ex. 6.) These requests were also accompanied by a digital signature report entitled
26
“Tesla Class Action: Personnel Records Request and Privacy Waiver.” (Id.)
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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO STRIKE PLAINTIFFS’
COMPLAINT WITHOUT LEAVE TO AMEND PURSUANT TO CCP § 425.16Page 13 1
2
2022 BSL stated that it would “raise Tesla’s ongoing noncompliance with Labor Code 1198.5 to the
3
LWDA.” (Tellado Decl. ¶ 8, Ex. 7.) This was already three weeks after BSL filed the PAGA
4
Notice. Then, on March 21, 2022, BSL sent another 50 personnel file requests. (Tellado Decl. ¶ 9,
5
Ex. 8.) The majority of these requests were dated December 15 or 16, 2021, indicating that BSL
6
was strategically peppering Tesla with personnel file demands in spite of the Vaughn stay. (Id.)
7
8
9
Holland & Knight LLP
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Though the Vaughn stay had been in place (and re-confirmed) for months, on March 1,
D.
Tesla Pushes Back, Again Invoking the Litigation Privilege and the Vaughn
Stay
On April 11, 2022 Tesla again objected to the continued personnel file requests, expressly
10
stating that it viewed the requests as a violation of the Vaughn stay and that it would not be
11
producing any further personnel files pursuant to the stay and the Labor Code section 1198.5(n)
12
litigation exception. (Tellado Decl. ¶ 10, Ex. 9.) In response, on April 19, 2022, Plaintiffs Shaka
13
Green, Tatianna Smith, and Zenobia Milligan submitted a substantively-identical PAGA letter to
14
the LWDA, again alleging that Tesla was liable for PAGA penalties due to its failure to produce
15
personnel files. (RJN Ex. 32.)
16
On August 4, 2022, Tesla wrote to again demand an end to the blatant unauthorized
17
discovery. (Tellado Decl. ¶ 11, Ex. 10.) Tesla detailed receipt of over 300 personnel file requests,
18
again invoked the Labor Code section 1198.5(n) privilege, and stated that these requests were
19
nothing more than “attempts to conduct unauthorized discovery” in violation of this Court’s “order
20
staying the Vaughn Action[.]” (Id.) Tesla also notified BSL that any purported PAGA claims
21
would have to be pursued in individual arbitration pursuant to Viking River Cruises, Inc. v.
22
Moriana, 142 S.Ct. 1906 (2022). (Id.)
23
24
25
On September 6, 2022, Tesla mailed BSL copies of Plaintiffs’ arbitration agreements.
(Tellado Decl. ¶ 12, Ex. 11.) Tesla received no response. (Tellado Decl. ¶ 12.)
On December 15, 2022, Tesla followed-up with BSL regarding the arbitration agreements
26
and to detail receipt of an additional 194 personnel file requests sent “in direct violation of the
27
Court’s order staying the Vaughn action.” (Tellado Decl. ¶ 13, Ex. 12.) As stated therein, “the
28
8
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO STRIKE PLAINTIFFS’
COMPLAINT WITHOUT LEAVE TO AMEND PURSUANT TO CCP § 425.16Page 14 Holland & Knight LLP
400 S. Hope, 8th Floor
Los Angeles, California 90071
Tel.: 213.896.2400 Fax: 213.896.2450
1
individuals for which you seek personnel files clearly fall within the allegedly aggrieved group in
2
the Vaughn matter, and as such, are subject to the litigation exception” to producing files. (Id.)
3
Plaintiffs then sat on their rights until March 29, 2023, when they filed the Complaint. 2
4
E.
5
Plaintiffs’ Complaint alleges that Tesla “has routinely shirked its duties under the Labor
Plaintiffs’ PAGA Allegations
6
Code by failing to provide current and former employees with complete personnel records, time and
7
pay records, and signed instruments upon the request of the current or former employee.” Compl. ¶
8
2. Therefore, “Plaintiffs seek civil penalties for the[se] above acts, which violate the Labor Code,
9
plus injunctive relief, and attorney’s fees and costs.” Compl. ¶ 3. Plaintiffs allege that the
10
“aggrieved employees” are those who worked, directly or indirectly, for Tesla “who requested but
11
were not provided timely and/or complete personnel records, including but not limited to time and
12
pay records, signed arbitration agreements, and documents concerning grievances.” Id. ¶ 12. Tesla
13
purportedly “failed to produce complete personnel records for more than 500 current or former
14
employees who were employed by Tesla, and/or who were employed at Tesla through a staffing
15
agency, that have been requested by counsel to the Representative Plaintiffs.” Id. ¶ 15.
16
Plaintiffs state that the basis of their suit is the purported non-production of files relevant to
17
Vaughn. See id. ¶¶ 20-27; 37. For example, Plaintiffs aver that “over 500 Aggrieved Employees
18
have issued written requests to Defendant for copies of their personnel records. . . such records were
19
to include all records relating to Representative Plaintiffs’ and Aggrieved Employees’ performance
20
and grievances concerning the Plaintiffs.” These requests are the “Personnel Records Request and
21
Privacy Waiver[s]” in the “Tesla Class Action” – Vaughn. Plaintiffs allege that “[o]n March 7,
22
2020, Representative Plaintiff Smith made a written complaint of discrimination and harassment to
23
Tesla’s Human Resources,” and “[d]uring her employment, Representative Plaintiff Green sent an
24
email to Tesla employees Thomas Dunning and Jonathan [LNU] reporting that he had been called
25
26
27
28
Tesla presumes this was because of uncertainty on how PAGA actions could proceed after Viking River
Cruises. But, on February 2, 2023, the Fifth Appellate District issued its decision in Galarasa v. Dolgen California,
LLC, No. F082404, _ Cal.App.5th _ (as modified February 24, 2023), holding that individual PAGA claims could be
compelled to arbitration, but not the representative portion of the claim. This was the first Court of Appeal decision
post Viking River to analyze and address the impact of that case on PAGA waivers.
2
9
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO STRIKE PLAINTIFFS’
COMPLAINT WITHOUT LEAVE TO AMEND PURSUANT TO CCP § 425.16Page 15 1
the N-word and threatened by a coworker,” Compl. ¶¶ 21-22, but Tesla supposedly failed to
2
produce such records. Compl. ¶¶ 24-25. It is Tesla’s purported non-production of records covered
3
by the Vaughn discovery process and stay that is the basis for the PAGA Complaint here. The
4
entire Complaint is based on Tesla’s refusal to violate Court orders establishing a discovery process
5
and staying proceedings, and invocation of statutory privileges not to produce records. 3
6
III.
7
The anti-SLAPP statute is designed to address “lawsuits brought primarily to chill the valid
8
exercise of the constitutional rights of freedom of speech and petition for the redress of grievances.”
9
Cal. Code Civ. Proc. (“CCP”) § 425.16(a). The statute provides in part that:
10
Holland & Knight LLP
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LEGAL STANDARD
12
A cause of action against a person arising from any act of that person in furtherance
of the person’s right of petition or free speech under the United States Constitution or
the California Constitution in connection with a public issue shall be subject to a
special motion to strike, unless the court determines that the plaintiff has established
there is a probability that the plaintiff will prevail on the claim.
13
CCP § 425.16(b)(1). The anti-SLAPP statute “shall be construed broadly” and protects making (1)
14
any written or oral statement or writing before a legislative, executive, or judicial proceeding, or
15
any other official proceeding authorized by law, (2) any written or oral statement or writing in
16
connection with an issue under consideration or review by a legislative, executive, or judicial body,
17
or any other official proceeding authorized by law, (3) any written or oral statement or writing in a
18
place open to the public or a public forum in connection with an issue of public interest, or (4) any
19
other conduct in furtherance of the exercise of the constitutional right of petition or the
20
constitutional right of free speech in connection with a public issue or an issue of public interest.
21
CCP § 425.16(e). A court “shall” strike claims arising from protected speech unless the party
22
asserting the claim can prove there is a probability of prevailing. Id.
11
23
24
25
26
27
28
Anti-SLAPP motions trigger a two-part burden-shifting test. First, “the party moving to
strike a cause of action has the initial burden to show that the cause of action arises from an act in
Even Tesla’s non-production of materials that it did not, and have never possessed, but which would have
been subject to discovery in Vaughn, forms the basis of Plaintiffs’ Complaint. See Compl. ¶ 23 (re: inability to produce
Taylor’s records because Tesla had no employee by that name and thus no records to produce). The Complaint
confirms that Plaintiff Taylor worked for West Valley Staffing and not directly for Tesla (and thus why Tesla could not
locate any individual on its employee roster by the name of “Sharonda Taylor.”). See Compl. ¶ 6.
3
10
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO STRIKE PLAINTIFFS’
COMPLAINT WITHOUT LEAVE TO AMEND PURSUANT TO CCP § 425.16Page 16 Holland & Knight LLP
400 S. Hope, 8th Floor
Los Angeles, California 90071
Tel.: 213.896.2400 Fax: 213.896.2450
1
furtherance of the moving party’s right of petition or free speech.” Salma v. Capon, 161 Cal. App.
2
4th 1275, 1283 (2008) (internal citation omitted). This is not a high burden, one that “a defendant
3
meets…by demonstrating that the act underlying the plaintiff’s cause fits one of the categories
4
spelled out in section 425.16, subdivision (e).” Navellier v. Sletten, 29 Cal. 4th 82, 88 (2002);
5
Equilon Enterprises v. Consumer Cause, Inc., 29 Cal. 4th 53, 67 (2002). A defendant only must
6
establish the potential applicability of the anti-SLAPP statute and need not address the substantive
7
merits of the claim. Tuchscher Dev. Enters., Inc. v. San Diego Unified Port Dist., 106 Cal. App.
8
4th 1219, 1234-35 (2003). It is the claim’s “principal thrust or gravamen” that determines whether
9
the anti-SLAPP statute applies. Martinez v. Metabolife Int’l, Inc., 113 Cal. App. 4th 181, 188
10
(2003).
11
Second, the burden shifts to the opposing party to demonstrate that it will prevail on the
12
challenged claim. CCP § 425.16(b)(2); Kyle v. Carmon, 71 Cal. App. 4th 901, 907 (1999). A plaintiff
13
must to show that there is admissible evidence that, if credited, would be sufficient to sustain a
14
favorable judgment. Navellier, 29 Cal. 4th at 89, 93; Taus v. Loftus, 40 Cal. 4th 683, 714 (2017).
15
The Court must evaluate “the merits of the plaintiff’s claim using a summary-judgment-like
16
procedure at an early stage of the litigation.” Contreras v. Dowling, 4 Cal. App. 5th 774, 784 (2016)
17
(internal quotations omitted); Tichinin v. City of Morgan Hill, 177 Cal. App. 4th 1049, 1062 (2009)
18
(courts “employ a standard similar to that employed in determining nonsuit, directed verdict or
19
summary judgment motions”). “In opposing an anti-SLAPP motion, the plaintiff cannot rely on the
20
allegations of the complaint, but must produce evidence that would be admissible at trial.” HMS
21
Capital, Inc. v. Lawyers Title Co., 118 Cal. App. 4th 204, 212 (2004); see also Thayer v. Kabateck
22
Brown Kellner LLP, 207 Cal. App. 4th 141, 160 (“[A party] cannot rely on her complaint, even if
23
verified, to demonstrate a probability of success on the merits.”). If the Court finds that a defendant
24
has made a threshold showing that the causes of action arise from protected activity, and that a
25
plaintiff has not shown a probability that she will prevail, it must grant the special motion to strike.
26
See Varian Med. Systems, Inc. v. Delfino, 35 Cal. 4th 180, 192 (2005). This is the case here.
27
28
11
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO STRIKE PLAINTIFFS’
COMPLAINT WITHOUT LEAVE TO AMEND PURSUANT TO CCP § 425.16Page 17 1
IV.
PLAINTIFFS’ ENTIRE PAGA COMPLAINT ARISES FROM TESLA’S
2
PROTECTED PETITIONING AND FREE SPEECH ACTIVITY
3
Prong 1 of the anti-SLAPP test requires that the Court determine what conduct forms the basis
4
for the challenged cause of action and whether it is protected activity. Thayer, 207 Cal. App. 4th at
5
153-4 (“The ‘crucial consideration’ is what the cause of action is ‘based on.’”). This not a question
6
of the “form of the plaintiff’s cause of action, but, rather, [of] the defendant’s activity that gives rise
7
to his or her asserted liability—and whether that activity constitutes protected speech or petitioning.”
8
Navellier, 29 Cal. 4th at 92. “[S]ection 425.16 encompasses any cause of action against a person
9
arising from any statement or writing made in, or in connection with an issue under consideration or
Holland & Knight LLP
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review by, an official proceeding or body.” Briggs v. Eden Council for Hope & Opportunity, 19 Cal.
11 4th 1106, 1113 (1999). “A statement is in connection with an issue under consideration by a court in
a judicial proceeding within the meaning of clause (2) of [CCP] section 425.16, subdivision (e) if it
relates to a substantive issue in the proceeding and is directed to a person having some interest in the
proceeding.” Crossroads Invs., L.P. v. Fed. Nat’l Mortg. Assn., 13 Cal. App. 5th 757, 779 (2017)
15 (“Fannie Mae”) (internal quotations and citations omitted).
16
Plaintiffs’ claim giving rise to liability is that Tesla refused to produce documents at Plaintiffs’
request. But Tesla’s action is a direct assertion of its statutory litigation privilege not to produce
documents (Lab. Code 1198.5(n)). This is textbook protected activity. See Briggs, 19 Cal. 4th at 92.
19 And, Tesla’s refusal to violate this Court’s stay order and Court-ordered discovery procedures in
20 Vaughn—including the personnel-file-request process—is protected activity. See Fannie Mae, 13
21 Cal. App. 5th at 779 (“We also conclude Fannie Mae’s omissions to respond to the requests made
while the bankruptcy action was pending and prior to Fannie Mae being relieved from the stay were
protected activity because they were made in connection with issues under review in the bankruptcy
proceeding.”).
25
To recap, in Vaughn, Tesla brought motions to tame BSL’s incessant personnel file requests.
26 The Court devised a discovery procedure for BSL to submit personnel file requests to Tesla and for
27 Tesla to respond to the same. But once the Court stayed discovery, Plaintiffs’ counsel went outside
28
12
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO STRIKE PLAINTIFFS’
COMPLAINT WITHOUT LEAVE TO AMEND PURSUANT TO CCP § 425.16Page 18 1
of the established process and continued serving personnel file requests. Tesla’s refusal to produce
2
the demanded materials pursuant to the Vaughn stay is fundamentally protected activity within the
3
anti-SLAPP statute. See id. Even after the Vaughn stay dissolved, Tesla’s refusal to produce outside
4
of the Court-ordered discovery process in Vaughn—the supposed basis for liability in this PAGA
5
action—is still protected activity. See id. at 782 (“Crossroads’ claims based on Fannie Mae’s
6
responses and omissions to its requests for accountings made after the stay was lifted thus arose from
7
protected activity.”) (emphasis added).
Holland & Knight LLP
400 S. Hope, 8th Floor
Los Angeles, California 90071
Tel.: 213.896.2400 Fax: 213.896.2450
8
Plaintiffs’ sole cause of action, for PAGA penalties, arises directly from Tesla’s actions
9
relating to a substantive issue in Vaughn. Tesla’s actions are thus protected activity. 4
10
V.
11
PLAINTIFFS HAVE NO LIKELIHOOD OF PREVAILING ON THE COMPLAINT
Because Tesla’s acts giving rise to Plaintiffs’ Complaint are protected activity, “the burden
12
shifts to the plaintiff to demonstrate that each challenged claim based on protected activity is legally
13
sufficient and factually substantiated.” Baral v. Schnitt, 1 Cal. 5th 376, 395 (2016). This is Prong 2,
14
which Plaintiffs must establish through summary-judgment-appropriate/trial-admissible evidence.
15
See Damon v. Ocean Hills Journalism Club, 85 Cal. App. 4th 468, 480 (2000); HMS Capital, Inc.,
16
118 Cal. App. 4th at 212. After setting aside improper evidence, the Court then must determine
17
whether the plaintiff has pled sufficient facts to uphold a judgment in his favor if plaintiff’s
18
remaining evidence, if any, is credited. See Barry v. State Bar of California, 2 Cal. 5th 318, 321
19
20
21
22
23
24
25
26
27
28
The litigation privilege set forth in Civil Code section 47(b) is instructive for the anti-SLAPP inquiry as
“[b]oth the Supreme Court and the Court of Appeal ‘have looked to the litigation privilege as an aid in construing the
scope of section 425.16, subdivision (e)(1) and (2) with respect to the first step of the two-step anti-SLAPP inquiry—
that is, by examining the scope of the litigation privilege to determine whether a given communication falls within the
ambit of subdivision (e)(1) and (2).’” Feldman v. 1100 Park Lane Assocs., 160 Cal. App. 4th 1467, 1479 (2008), citing
Flatley v. Mauro, 39 Cal. 4th 299, 322-323 (2006); see also Navellier v. Sletten, 106 Cal. App. 4th 763, 770 (2003)
(protections afforded by the statute and the privilege are not entirely coextensive, but “privilege informs interpretation
of the ‘arising from’ prong of the anti-SLAPP statute [citation]”). Like the anti-SLAPP statute, Civ. Code section 47(b)
has been construed to apply to “any communication (1) made in judicial or quasi-judicial proceedings; (2) by litigants
or other participants authorized by law; (3) to achieve the objects of the litigation; and (4) that have some connection or
logical relation to the action.” Silberg v. Anderson, 50 Cal. 3d 205, 212 (1990). Applying this test to Tesla’s refusal to
produce pursuant to the personnel file requests yields the same result—that Tesla’s conduct is protected activity.
Tesla’s refusal to produce was made in a judicial proceeding, by a litigant, to achieve the objects of the litigation (i.e.,
defending the claim and respecting the Court’s order), to achieve the objects of the litigation (i.e., defending the claim),
and the communication/action of not producing has a connection to the action as it falls within the ambit of the Vaughn
discovery orders setting forth a production process.
4
13
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO STRIKE PLAINTIFFS’
COMPLAINT WITHOUT LEAVE TO AMEND PURSUANT TO CCP § 425.16Page 19 Holland & Knight LLP
400 S. Hope, 8th Floor
Los Angeles, California 90071
Tel.: 213.896.2400 Fax: 213.896.2450
1
(2017). “An anti-SLAPP motion should be granted when the non-moving party presents an
2
insufficient legal basis for the claims or ‘when no evidence of sufficient substantiality exists to
3
support a judgment for the [non-moving party].’” Wilcox v. Superior Court, 27 Cal. App. 4th 809,
4
828 (1994). Even still, proof of a valid defense is relevant to determine a lack of probability of
5
prevailing. No Doubt v. Activision Publishing, Inc., 192 Cal. App. 4th 1018, 1026 (2011). There is
6
no probability of prevailing on the only claim here.
7
A.
The Litigation Privilege (Civ. Code § 47(b)) is an Absolute Bar to Liability
8
A party cannot establish the probability of prevailing in the anti-SLAPP context “if the
9
litigation privilege precludes the defendant’s liability on the claim.” Fremont Reorganizing Corp.
10
v. Faigin, 198 Cal. App. 4th 1153, 1172 (2011). That is exactly the case here. The litigation
11
privilege “applies to any publication required or permitted by law in the course of a judicial
12
proceeding to achieve the objects of the litigation, even though the publication is made outside the
13
courtroom and no function of the court or its officers is involved.” Silberg, 50 Cal. 3d at 212; see
14
also Cal. Civ. Code § 47(b) (“a privileged publication is one made…in any…judicial proceeding”).
15
The “litigation privilege is held to be absolute in nature,” Silberg, 50 Cal. 3d at 215, so absolute that
16
it protects conduct even if it is “alleged to be fraudulent, perjurious, unethical, or even illegal.”
17
Kashian v. Harriman, 98 Cal. App. 4th 892, 920 (2002); see also Steiner v. Eikerling, 181 Cal.
18
App. 3d 639, 642 (1986) (litigation privilege applies to bar fraud claim); Bergstein v. Stroock &
19
Stroock & Lavan LLP, 236 Cal. App. 4th 793, 815 (2015) (litigation privilege applies to bar claims
20
for breach of fiduciary duty and aiding and abetting breach of fiduciary duty).
21
Here, the conduct which forms the basis of the PAGA Complaint—refusing to produce
22
documents on the basis of statutory privilege and following court orders—is protected by the
23
litigation privilege. Tesla’s action and statements refusing to produce, grounded in statute and
24
Court order, were made in a judicial proceeding (Vaughn) or in anticipation of this Superior Court
25
action after Plaintiffs filed the PAGA Notices, Tesla is a litigant, and the action was undertaken in
26
furtherance of Tesla’s defense to Vaughn’s claims. Finally, there is necessarily a connection
27
between, on the one hand, Tesla refusing to produce personnel files for Vaughn putative class
28
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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO STRIKE PLAINTIFFS’
COMPLAINT WITHOUT LEAVE TO AMEND PURSUANT TO CCP § 425.16Page 20 Holland & Knight LLP
400 S. Hope, 8th Floor
Los Angeles, California 90071
Tel.: 213.896.2400 Fax: 213.896.2450
1
members outside of discovery in Vaughn, and on the other hand, the Court’s imposed discovery
2
process for requesting and producing personnel files for Vaughn putative class members in
3
discovery in Vaughn. See, e.g., Fannie Mae, 13 Cal. App. 5th at 780 (“[A]t the time Crossroads
4
asked Fannie Mae for the cure amount, it was litigating in bankruptcy court what that amount could
5
legally be under California law. The out-of-court requests for the accountings and Fannie Mae’s
6
failure to respond to them were thus made in connection with issues under consideration by the
7
bankruptcy court.”)
8
B.
Leave to Amend Should Be Denied
9
Plaintiffs cannot show any probability of success because their entire complaint is based on
10
Tesla’s protected petitioning activity. No amount of additional amendment, adding different causes
11
of action, or attempting to cure a facially retaliatory pleading, can erase that the Complaint alleges
12
that Tesla’s protected activity is what gives rise to liability. Plaintiffs should be denied leave to
13
amend in the face of Tesla’s anti-SLAPP motion, particularly where it would be futile to do so. See
14
City of Colton v. Singletary, 206 Cal. App. 4th 751, 775 (2012) (a party may not “amend around” an
15
anti-SLAPP motion).
16
VI.
17
18
19
20
21
22
23
24
25
CONCLUSION
For the reasons set forth above, Plaintiffs’ Complaint should be struck, in its entirety, without
leave to amend.
Dated: May 12, 2023
HOLLAND & KNIGHT LLP
HOLLAND & KNIGHT LLP
Sara A. Begley
Christina Tellado
Samuel J. Stone
Mary T. Vu
Attorneys for Defendant
TESLA, INC.
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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO STRIKE PLAINTIFFS’
COMPLAINT WITHOUT LEAVE TO AMEND PURSUANT TO CCP § 425.16Page 21 1
PROOF OF SERVICE
2
3
STATE OF CALIFORNIA
4
COUNTY OF LOS ANGELES
5
I am employed in the County of Los Angeles, State of California. I am over the age of 18
and not a party to the within action. My business address is 400 S. Hope Street, 8th Floor, Los
Angeles, California 90071.
6
7
8
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Holland & Knight LLP
400 S. Hope, 8th Floor
Los Angeles, California 90071
Tel.: 213.896.2400 Fax: 213.896.2450
10
11
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)
)
)
ss.
On May 12, 2023 I caused the foregoing document described as MEMORANDUM OF POINTS
AND AUTHORITIES IN SUPPORT OF TESLA, INC.’S SPECIAL MOTION TO STRIKE
PLAINTIFFS’ COMPLAINT WITHOUT LEAVE TO AMEND PURSUANT TO C.C.P.
425.16 to be served on the interested parties in this action as follows:
CALIFORNIA CIVIL RIGHTS LAW
BRYAN SCHWARTZ LAW
GROUP
Bryan Schwartz (SBN 209903)
Lawrence Organ, Esq.
180 Grand Ave, Suite 1380
332 San Anselmo Avenue
Oakland, California 94612
San Anselmo, CA 94960
Email: bryan@bryanschwartzlaw.com
Tel. (415) 453-4740
Fax (415) 785-7352
Email: larry@civilrightsca.com
ATTORNEYS FOR PLAINTIFF
[ X ] BY EMAIL (CCP §§ 1013(a)) Based on a court order or an agreement of the parties to
accept service by e-mail or electronic transmission, I caused the document(s) to be sent to the
person(s) at the e-mail address(es) indicated above. I did not receive, within a reasonable time
after the transmission, any electronic message or other indication that the transmission was
unsuccessful.
[ X ] BY MAIL: I enclosed the document(s) in a sealed envelope or package addressed to the
persons at the addresses listed above and placed the envelope for collection and mailing, following
our ordinary business practices. I am readily familiar with Holland & Knight LLP’s practice for
collecting and processing correspondence for mailing. On the same day that the correspondence
is placed for collection and mailing, it is deposited in the ordinary course of business with the
United States Postal Service, in a sealed envelope with postage fully prepaid.
[ X ] (STATE) I declare under penalty of perjury under the laws of the State of California that
the above is true and correct.
Executed on May 12, 2023 at Los Angeles, California.
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Carolina Del Real
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PROOF OF SERVICE
PDF Page 1
PlainSite Cover Page
PDF Page 2
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Holland & Knight LLP
400 S. Hope, 8th Floor
Los Angeles, California 90071
Tel.: 213.896.2400 Fax: 213.896.2450
9
HOLLAND & KNIGHT LLP
Sara A. Begley (Pro hac vice application forthcoming)
Christina Tellado (SBN 298597)
Samuel J. Stone (SBN 317013)
Mary Vu (SBN 323088)
400 South Hope Street, 8th Floor
Los Angeles, CA 90071
Telephone: 213.896.2400
Fax: 213.896.2450
E-mail: sara.begley@hklaw.com
christina.tellado@hklaw.com
sam.stone@hklaw.com
mary.vu@hklaw.com
Attorneys for Defendant
TESLA, INC.
10
SUPERIOR COURT OF THE STATE OF CALIFORNIA
11
COUNTY OF ALAMEDA
12
13
14
SHARONDA TAYLOR, TATIANNA
SMITH, ZENOBIA MILLIGAN, and SHAKA
GREEN, individually and on behalf of all
aggrieved employees,
Plaintiffs,
15
vs.
16
TESLA, INC. doing business in California as
TESLA MOTORS, INC.; and DOES 1
THROUGH 50, INCLUSIVE,
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Defendants.
Case No.: 23CV028922
[Assigned to Judge Brad Seligman]
MEMORANDUM OF POINTS AND
AUTHORITIES IN SUPPORT OF
TESLA, INC.’S SPECIAL MOTION TO
STRIKE PLAINTIFFS’ COMPLAINT
WITHOUT LEAVE TO AMEND
PURSUANT TO CCP § 425.16
[Notice of Motion and Motion to Strike;
Declaration of Christina T. Tellado in
Support of Motion to Strike; Request for
Judicial Notice; [Proposed] Order Granting
Motion to Strike, Filed Concurrently
Herewith]
Date: June 20, 2023
Time: 9:15 a.m.
Location: Oakland Administration Bldg.
24
Complaint Filed: March 07, 2023
Trial Date:
None Set
25
RESERVATION NO.: 591993596536
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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO STRIKE PLAINTIFFS’
COMPLAINT WITHOUT LEAVE TO AMEND PURSUANT TO CCP § 425.16
PDF Page 3
TABLE OF CONTENTS
1
Page
2
3
I.
INTRODUCTION ................................................................................................................... 1
4
II.
STATEMENT OF FACTS ...................................................................................................... 1
5
A.
Vaughn v. Tesla: Plaintiffs’ Counsel’s Discovery and the Stay of Proceedings ......... 2
6
B.
CRD v. Tesla: Plaintiffs’ Counsel’s Actions to Obstruct Tesla’s Discovery ............... 5
7
C.
Plaintiffs’ Counsel’s Abusive Personnel File Requests ............................................... 6
8
D.
Tesla Pushes Back, Again Invoking the Litigation Privilege and the Vaughn
Stay .............................................................................................................................. 8
E.
Plaintiffs’ PAGA Allegations ....................................................................................... 9
9
Holland & Knight LLP
400 S. Hope, 8th Floor
Los Angeles, California 90071
Tel.: 213.896.2400 Fax: 213.896.2450
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11
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III.
LEGAL STANDARD ............................................................................................................ 10
IV.
PLAINTIFFS’ ENTIRE PAGA COMPLAINT ARISES FROM TESLA’S
PROTECTED PETITIONING AND FREE SPEECH ACTIVITY ...................................... 12
V.
PLAINTIFFS HAVE NO LIKELIHOOD OF PREVAILING ON THE
COMPLAINT ........................................................................................................................ 13
14
15
16
17
VI.
A.
The Litigation Privilege (Civ. Code § 47(b)) is an Absolute Bar to Liability ........... 14
B.
Leave to Amend Should Be Denied........................................................................... 15
CONCLUSION ...................................................................................................................... 15
18
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TABLE OF AUTHORITIES
1
Page(s)
2
3
Cases
4
Baral v. Schnitt,
5
6
7
8
9
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400 S. Hope, 8th Floor
Los Angeles, California 90071
Tel.: 213.896.2400 Fax: 213.896.2450
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11
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19
20
21
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1 Cal. 5th 376 (2016) ................................................................................................................... 13
Barry v. State Bar of California,
2 Cal. 5th 318 (2017) ................................................................................................................... 13
Bergstein v. Stroock & Stroock & Lavan LLP,
236 Cal. App. 4th 793 (2015) ...................................................................................................... 14
Briggs v. Eden Council for Hope & Opportunity,
19 Cal. 4th 1106 (1999) ............................................................................................................... 12
City of Colton v. Singletary,
206 Cal. App. 4th 751 (2012) ...................................................................................................... 15
Contreras v. Dowling,
4 Cal. App. 5th 774 (2016) .......................................................................................................... 11
Crossroads Invs., L.P. v. Fed. Nat’l Mortg. Assn.,
13 Cal. App. 5th 757 (2017) .................................................................................................. 12, 15
Damon v. Ocean Hills Journalism Club,
85 Cal. App. 4th 468 (2000) ........................................................................................................ 13
Equilon Enterprises v. Consumer Cause, Inc.,
29 Cal. 4th 53 (2002) ................................................................................................................... 11
Feldman v. 1100 Park Lane Assocs.,
160 Cal. App. 4th 1467 (2008) .................................................................................................... 13
Fremont Reorganizing Corp. v. Faigin,
198 Cal. App. 4th 1153 (2011) .................................................................................................... 14
Galarasa v. Dolgen California, LLC,
No. F082404, _ Cal.App.5th _ ....................................................................................................... 9
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2
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400 S. Hope, 8th Floor
Los Angeles, California 90071
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11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
HMS Capital, Inc. v. Lawyers Title Co.,
118 Cal. App. 4th 204 (2004) ................................................................................................ 11, 13
Kashian v. Harriman,
98 Cal. App. 4th 892 (2002) ........................................................................................................ 14
Kyle v. Carmon,
71 Cal. App. 4th 901 (1999) ........................................................................................................ 11
Lambert v. Tesla,
No. 18-15203 (9th Cir. 2019) ........................................................................................................ 2
Martinez v. Metabolife Int’l, Inc.,
113 Cal. App. 4th 181 (2003) ...................................................................................................... 11
Navellier v. Sletten,
106 Cal. App. 4th 763 (2003) ...................................................................................................... 13
Navellier v. Sletten,
29 Cal. 4th 82 (2002) ............................................................................................................. 11, 12
No Doubt v. Activision Publishing, Inc.,
192 Cal. App. 4th 1018 (2011) .................................................................................................... 14
Salma v. Capon,
161 Cal. App. 4th 1275 (2008) .................................................................................................... 10
Silberg v. Anderson,
50 Cal. 3d 205 (1990) ............................................................................................................ 13, 14
Steiner v. Eikerling,
181 Cal. App. 3d 639 (1986) ....................................................................................................... 14
Taus v. Loftus,
40 Cal. 4th 683 (2017) ................................................................................................................. 11
Thayer v. Kabateck Brown Kellner LLP,
207 Cal. App. 4th 141 (2012) ................................................................................................ 11, 12
27
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2
3
4
5
6
7
8
9
Holland & Knight LLP
400 S. Hope, 8th Floor
Los Angeles, California 90071
Tel.: 213.896.2400 Fax: 213.896.2450
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11
12
13
14
Tichinin v. City of Morgan Hill,
177 Cal. App. 4th 1049 (2009) .................................................................................................... 11
Tuchscher Dev. Enters., Inc. v. San Diego Unified Port Dist.,
106 Cal. App. 4th 1219 (2003) .................................................................................................... 11
Varian Med. Systems, Inc. v. Delfino,
35 Cal. 4th 180 (2005) ................................................................................................................. 11
Vaughn et al. v. Tesla, Inc.,
Alameda Superior Court Case No. RG17882082 ................................................................. passim
Viking River Cruises, Inc. v. Moriana,
142 S.Ct. 1906 (2022) ................................................................................................................ 8, 9
Wilcox v. Superior Court,
27 Cal. App. 4th 809 (1994) ........................................................................................................ 14
Statutes
15
Cal. Code Civ. Proc. § 425.16 .................................................................................................... passim
16
California Private Attorneys General Act, Labor Code §§ 2698 et seq...................................... passim
17
California Fair Employment and Housing Act ................................................................................ 2, 5
18
Cal. Code Civ. Proc. § 1013(a) ............................................................................................................ 1
19
Cal. Civil Code § 47(b) ................................................................................................................ 13, 14
20
Cal. Labor Code § 1198.5(n) ...................................................................................................... passim
21
22
23
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I.
Holland & Knight LLP
400 S. Hope, 8th Floor
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Tel.: 213.896.2400 Fax: 213.896.2450
2
INTRODUCTION
Defendant Tesla, Inc. (“Tesla”) brings this special motion to strike Plaintiff Sharonda
3
Taylor, Shaka Green, Tatianna Smith, and Zenobia Milligan’s (collectively “Plaintiffs”) March 3,
4
2023 Complaint (“Complaint”) alleging one cause of action, for civil penalties pursuant to the
5
California Private Attorneys General Act (“PAGA”), Labor Code §§ 2698 et seq. The Complaint is
6
entirely based on Tesla’s protected petitioning activity—following this Court’s orders and asserting
7
a statutory privilege. The Complaint stylizes this as a supposed failure to produce to Plaintiffs their
8
personnel files and related documents. But, Tesla was producing exactly these files and it stopped
9
pursuant to Court order and a statutory privilege (Lab. Code § 1198.5(n)) to withhold production.
10
Regrettably, this Action and the Plaintiffs are pawns in part of a larger scheme by their counsel,
11
Bryan Schwartz Law (“BSL”), to side-step the Court’s discovery orders in Vaughn et al. v. Tesla,
12
Inc., Alameda Superior Court Case No. RG17882082 (“Vaughn” or the “Vaughn Action”), a class-
13
action case BSL is also litigating against Tesla. The Complaint is silent about this to avoid the
14
obvious conclusion that it directly arises from Tesla’s protected petitioning and speech activity.
15
At its heart, the Complaint is a strategic lawsuit against Tesla’s public participation. The
16
sole basis for alleged liability is Tesla’s protected activity—respecting Court orders in Vaughn by
17
staying production and discovery of personnel files, and invoking a statutory privilege to withhold
18
production. As more fully discussed herein, the Complaint should be struck in full.
19
II.
20
STATEMENT OF FACTS
This suit is the third of a trio of active suits against Tesla in which BSL is involved. The
21
first is Vaughn, a putative class action alleging race discrimination against African-Americans by
22
Tesla, among other claims. The second is DFEH v. Tesla, Inc. (“CRD” or the “CRD Case”),
23
Alameda Superior Court Case No. 22CV006830, purportedly brought on behalf of a group of
24
African-American employees. 1 The third is this Action. Plaintiffs in this case are putative Vaughn
25
class members, and among the group of individuals for whom the CRD seeks to enforce certain
26
27
28
Subsequent to filing, the Department of Fair Employment and Housing changed its name to the California
Civil Rights Department (“CRD”).
1
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400 S. Hope, 8th Floor
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Tel.: 213.896.2400 Fax: 213.896.2450
1
rights in the CRD Case. In Vaughn, BSL issued personnel file requests for the Plaintiffs in this
2
Action. It is these personnel file requests which form the basis of Plaintiffs’ Complaint here.
Vaughn v. Tesla: Plaintiffs’ Counsel’s Discovery and the Stay of Proceedings
3
A.
4
On November 13, 2017, Marcus Vaughn (“Vaughn”), a former Tesla employee, filed a class
5
action complaint alleging race discrimination, race harassment, and failure to prevent discrimination
6
under California’s Fair Employment and Housing Act (“FEHA”). (Request for Judicial Notice
7
[“RJN”] in Support of Motion, Ex. 1.) Vaughn is represented by BSL. Id. Vaughn seeks to
8
represent a class and subclass comprised of current and former African American contractors and
9
employees working on the production floor at the Fremont factory from November 9, 2016 to final
10
judgment. Id. To say the case has been hotly litigated is an understatement. A summary of key
11
dates in Vaughn relevant to this Motion are as follows:
12
•
March 2, 2020: Vaughn files a motion to compel discovery of handbooks, policies,
13
training materials, and documents produced in Lambert v. Tesla, a private arbitration
14
matter commenced upon being compelled to arbitration, see generally Lambert v. Tesla,
15
No. 18-15203 (9th Cir. 2019), among other items; (RJN Ex. 2.)
16
•
March 12, 2020: Vaughn files a motion to compel responses to document requests,
17
interrogatories, and requests for admission, including demanding class-wide discovery;
18
(RJN Ex. 3.)
19
•
20
21
Ex. 4.)
•
22
23
June 5, 2020: The Court grants in part Tesla’s motion for a protective order and grants in
part Vaughn’s March 12, 2020 motion to compel interrogatory responses; (RJN Ex. 5.)
•
24
25
May 13, 2020: Tesla files a motion for protective order re: class-wide discovery; (RJN
July 10, 2020: Vaughn files a supplemental motion to compel responses to documents,
interrogatories, and requests for admission; (RJN Ex. 6.)
•
September 30, 2020: The Court grants in part Vaughn’s July 10, 2020 supplemental
26
motion to compel. The Court orders Tesla to produce, among other items, any third
27
party complaints and documents directly related to any resulting investigation and
28
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discipline for third parties (employees/workers at Tesla) if that employee submits a
2
“privacy waiver” authorizing production of such records; (RJN Ex. 7.)
3
•
4
5
allegations; (RJN Ex. 8.)
•
November 4, 2020 to March 12, 2021: Tesla, Vaughn, and a number of third-party
6
companies that provided contractors to Tesla are embroiled in motion practice regarding
7
class discovery, subpoenas to the third parties and compelling production from the same,
8
and other motion practice, all generally related to discovery of the identities of putative
9
class members and their employment records; (RJN Ex. 9.)
10
Holland & Knight LLP
400 S. Hope, 8th Floor
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Tel.: 213.896.2400 Fax: 213.896.2450
November 4, 2020: Tesla files a motion to deny class certification and strike class
•
April 26, 2021: The Court grants in part Vaughn’s February 10, 2021 motion to compel
11
further production and interrogatories and Vaughn’s January 29, 2021 motion to compel
12
compliance with third-party subpoenas; (RJN Ex. 10.)
13
•
May 7, 2021: Vaughn files a First Amended Complaint purporting to represent African-
14
American Tesla employees working on the production floor at the Fremont location
15
from November 9, 2016 through final judgment who are not subject to arbitration
16
agreements; (RJN Ex. 11.)
17
•
June 16, 2021: The Court tentatively orders Tesla to produce, among other information,
18
the names and contact information of persons with information responsive to Vaughn’s
19
various interrogatories and the same for witnesses supporting Tesla’s affirmative
20
defenses, and on June 30, 2021 issues a final order; (RJN Ex. 12.)
21
•
22
23
July 6, 2021: Vaughn files a Second Amended Complaint to name as co-plaintiffs
Monica Chatman (“Chatman”), Evie Hall (“Hall”) and Titus McCaleb; (RJN Ex. 13.)
•
July 20, 2021: Tesla files a motion for protective order regarding Vaughn’s demand for
24
production of all documents relating to any discipline imposed on any Tesla employee
25
for using racially offensive language; (RJN Ex. 14.)
26
27
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•
July 26, 2021: Vaughn files another motion to compel production of documents; (RJN
Ex. 15.)
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•
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Tel.: 213.896.2400 Fax: 213.896.2450
3
August 2, 2021: Tesla files its motion to compel Chatman and Hall to arbitration; (RJN
Ex. 16.)
•
August 26, 2021: The Court partially grants Tesla’s July 20, 2021 motion but opens
4
discovery as to those “persons who signed [privacy] waivers and who were
5
complainants, subjects or witnesses regarding incidents during the class period.” The
6
Court orders Tesla to produce files relating to 191 employees, for the 191 personnel file
7
requests/privacy waivers Tesla already received, within three weeks. The Court also
8
establishes a framework for requests/production: each time Tesla receives an aggregate
9
of 100 additional file requests and waivers, it is required to produce such records within
10
28 days; (RJN Ex. 17.)
11
•
12
13
Chatman and Hall’s claims to arbitration; (RJN Ex. 18.)
•
14
15
•
November 29, 2021: Tesla appeals the Court’s October 12, 2021 order partially granting
Tesla’s motion to compel arbitration, thus automatically staying the case; (RJN Ex. 20.)
•
18
19
November 3, 2021: The Court grants Vaughn’s July 26, 2021 motion to compel
documents and further responses to discovery requests; (RJN Ex. 19.)
16
17
October 12, 2021: The Court grants in part Tesla’s August 2, 2021 motion to compel
December 30, 2021: Vaughn sends Tesla another 50 personnel file requests and waivers;
(Declaration of Christina T. Tellado in Support of Motion [“Tellado Decl.”] ¶ 4.)
•
January 21, 2022: The Court grants Tesla’s motion for a stay pending appeal, staying
20
any remaining portions of Vaughn not impacted by the automatic stay on appeal; (RJN
21
Ex. 21.)
22
•
23
24
Around this time, BSL commenced threatening commencing this litigation for
purported failure to produce records; (Tellado Decl. ¶¶ 5-8.)
•
January 4, 2023: The Court of Appeal affirms the Court’s order granting the motion to
25
compel arbitration, and on April 12, 2023 the Court of Appeal issues a remittitur; (RJN
26
Ex. 22.)
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Holland & Knight LLP
400 S. Hope, 8th Floor
Los Angeles, California 90071
Tel.: 213.896.2400 Fax: 213.896.2450
1
•
April 18, 2023: BSL discloses at a case management conference that their firm
2
represents current and former Tesla employees whose statements are quoted in the
3
CRD’s Complaint and whom Tesla has noticed depositions of as percipient witnesses.
4
(Tellado Decl. ¶ 17.) It has already been confirmed that these witnesses are also putative
5
class members in Vaughn—i.e., African-American Tesla Production Floor employees.
6
See, e.g., (RJN Ex. 23) (“In 2020, Worker 1 was identified as a putative class member
7
the Vaughn v. Tesla case, as he is a Black man who worked in production at Tesla’s
8
Fremont plant during the putative class period…”)
CRD v. Tesla: Plaintiffs’ Counsel’s Actions to Obstruct Tesla’s Discovery
9
B.
10
On February 9, 2022, the CRD filed suit against Tesla generally alleging various FEHA
11
claims including race harassment; race discrimination in assignment, compensation, discipline,
12
promotion; and failure to prevent discrimination, harassment and retaliation. (RJN Ex. 24.) On
13
March 11, 2022, CRD filed an Amended Complaint alleging thirteen causes of action, namely,
14
those above plus claims for unequal pay, wrongful waiver of rights, and failure to retain and
15
produce records. (RJN Ex. 25.) CRD purports to bring its Complaint on behalf of all African-
16
American employees at Tesla’s Fremont factory. (Id.) Tesla counter-sued CRD for various
17
statutory violations. (RJN Ex. 26.)
18
A particular avenue of discovery Tesla continues to pursue relates to individuals whose
19
statements are either referred to or directly quoted in CRD’s Complaint. To that end, on August 25,
20
2022, Tesla issued deposition subpoenas to various individuals seeking their testimony in CRD,
21
including “Worker 1”. (RJN Ex. 27.) On October 12, 2022, CRD moved to quash Worker 1’s
22
deposition subpoena and Tesla subsequently withdrew the subpoena to Worker 1. (Id.) CRD’s
23
October 12, 2022 Motion included a declaration from CRD stating that Worker 1 was represented
24
by private counsel for purposes of an administrative action before CRD but never identified
25
counsel. (Id.)
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On October 17, 2022, Tesla contacted BSL to inquire whether it was authorized to accept
2
service of a deposition subpoena to Worker 1 in CRD. (RJN Exs. 28-29.) BSL did not respond.
3
(RJN Ex. 29.)
4
On February 17, 2023, Tesla re-served Worker 1 with a deposition subpoena in the CRD
5
case. (RJN Ex. 29.) Thereafter, CRD and Tesla met-and-conferred and Tesla again noted that it
6
had no confirmation Worker 1 was represented by private counsel. (Id.; Tellado Decl. ¶ 14.)
7
CRD did not provide this information. (Tellado Decl. ¶ 14.)
8
On March 7, 2023, BSL emailed Tesla and CRD’s counsel that:
9
It has come to our attention that Tesla has issued subpoenas to individuals we represent
without serving us. Let this serve as notice of our objection to any/all subpoenas that
may have been served on the following clients of Bryan Schwartz Law and California
Civil Rights Law Group within the past month: [Redacted List] All of these
individuals have filed complaints of discrimination against Tesla with the California
Civil Rights Department (CRD) and BSL and CCRLG are their legal representatives
of record in those matters. Please ensure that any and all subpoenas directed to these
individuals and all communications relating to their claims against Tesla are timely
served on our offices. Of course, by accepting service, we are not conceding the
propriety of the subpoenas or any requests contained therein. We expressly reserve the
right to assert additional objections and/or move to quash the subpoenas once we
actually receive them.
Holland & Knight LLP
400 S. Hope, 8th Floor
Los Angeles, California 90071
Tel.: 213.896.2400 Fax: 213.896.2450
10
11
12
13
14
15
16
(Tellado Decl. ¶ 15; RJN Ex. 30.)
17
On March 8, 2023, Tesla offered to send copies of the subpoenas to BSL and to coordinate
18
deposition dates. (Tellado Decl. ¶ 16.) Before Tesla received a response, on March 9, 2023, CRD
19
moved to quash Worker 1’s subpoena. (RJN Ex. 28.)
20
On April 4, 2023, Tesla filed a Motion to Compel Compliance with Worker 1’s subpoena.
21
(RJN Ex. 29.) On April 17, 2023, BSL filed an Opposition to Tesla’s April 4, 2023 Motion to
22
Compel Compliance on Worker 1’s behalf. (RJN Ex. 30.) Therein, BSL invoked CRD’s
23
(supposed) investigatory privilege as a basis for refusing to produce Worker 1 for a deposition in
24
CRD. (RJN Ex. 30.)
25
C.
26
On April 26, 2021 Tesla received from BSL a personnel file request for “Sharonda Taylor”
27
28
Plaintiffs’ Counsel’s Abusive Personnel File Requests
in connection with the Vaughn litigation. (Tellado Decl. ¶ 2.) On June 25, 2021 Tesla informed
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400 S. Hope, 8th Floor
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Tel.: 213.896.2400 Fax: 213.896.2450
1
Plaintiffs’ counsel that it did not have any record of such employee on its roster. (Tellado Decl. ¶
2
3.) Shortly thereafter, the Vaughn Court heard a dispute between the parties regarding these
3
personnel file requests. To that end, on August 26, 2021 the Vaughn Court created a specific
4
process for submitting personnel requests (i.e., they had to come with a privacy waiver) and a
5
mechanism for Tesla to respond to the same. (RJN Ex. 17.) Three months later, on November 29,
6
2021, Vaughn was stayed on appeal. (RJN Ex. 20.)
7
Despite the stay, on December 30, 2021, Tesla received from BSL 50 personnel file
8
requests. (Tellado Decl. ¶ 4.) Each request enclosed a signed release (the “privacy waiver”) from
9
the individual whose files were requested and a digital signature report entitled “Tesla Class Action:
10
Personnel Records Request and Privacy Waiver,” referring to Vaughn. (Tellado Decl. ¶ 4, Ex. 3.)
11
On January 18, 2022, despite the stay, BSL continued to complain about inadequate responses to
12
personnel files for individuals that were identified as putative class members, by name, in Vaughn.
13
(Tellado Decl. ¶ 5, Ex. 4.)
14
On February 4, 2022, Tesla responded to BSL’s January 18, 2022 correspondence and set
15
forth what was actually occurring: that the personnel file requests “circumvent the litigation
16
exception [to § 1198.5] and limits on discovery and the Court-ordered stay [in Vaughn].” (Tellado
17
Decl. ¶ 6, Ex. 5.) By that time, Tesla had already produced personnel files for 172 individuals
18
pursuant to authorized request as required by the Court and committed to continuing to work with
19
Plaintiffs’ counsel regarding responsive documents. (Tellado Decl. ¶ 6.)
20
Unbeknownst to Tesla, on February 9, 2022 BSL submitted correspondence to the
21
California Labor and Workforce Development Agency (“LWDA”) as a statutory prerequisite to
22
commence a PAGA action on behalf of Sharonda Taylor. (RJN Ex. 31.) The February 9, 2022
23
letter (“PAGA Notice”) alleged that Tesla’s production of personnel files was deficient. (Id.)
24
On February 17, 2022, BSL sent Tesla another 50 requests for personnel files. (Tellado
25
Decl. ¶ 7, Ex. 6.) These requests were also accompanied by a digital signature report entitled
26
“Tesla Class Action: Personnel Records Request and Privacy Waiver.” (Id.)
27
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2
2022 BSL stated that it would “raise Tesla’s ongoing noncompliance with Labor Code 1198.5 to the
3
LWDA.” (Tellado Decl. ¶ 8, Ex. 7.) This was already three weeks after BSL filed the PAGA
4
Notice. Then, on March 21, 2022, BSL sent another 50 personnel file requests. (Tellado Decl. ¶ 9,
5
Ex. 8.) The majority of these requests were dated December 15 or 16, 2021, indicating that BSL
6
was strategically peppering Tesla with personnel file demands in spite of the Vaughn stay. (Id.)
7
8
9
Holland & Knight LLP
400 S. Hope, 8th Floor
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Tel.: 213.896.2400 Fax: 213.896.2450
Though the Vaughn stay had been in place (and re-confirmed) for months, on March 1,
D.
Tesla Pushes Back, Again Invoking the Litigation Privilege and the Vaughn
Stay
On April 11, 2022 Tesla again objected to the continued personnel file requests, expressly
10
stating that it viewed the requests as a violation of the Vaughn stay and that it would not be
11
producing any further personnel files pursuant to the stay and the Labor Code section 1198.5(n)
12
litigation exception. (Tellado Decl. ¶ 10, Ex. 9.) In response, on April 19, 2022, Plaintiffs Shaka
13
Green, Tatianna Smith, and Zenobia Milligan submitted a substantively-identical PAGA letter to
14
the LWDA, again alleging that Tesla was liable for PAGA penalties due to its failure to produce
15
personnel files. (RJN Ex. 32.)
16
On August 4, 2022, Tesla wrote to again demand an end to the blatant unauthorized
17
discovery. (Tellado Decl. ¶ 11, Ex. 10.) Tesla detailed receipt of over 300 personnel file requests,
18
again invoked the Labor Code section 1198.5(n) privilege, and stated that these requests were
19
nothing more than “attempts to conduct unauthorized discovery” in violation of this Court’s “order
20
staying the Vaughn Action[.]” (Id.) Tesla also notified BSL that any purported PAGA claims
21
would have to be pursued in individual arbitration pursuant to Viking River Cruises, Inc. v.
22
Moriana, 142 S.Ct. 1906 (2022). (Id.)
23
24
25
On September 6, 2022, Tesla mailed BSL copies of Plaintiffs’ arbitration agreements.
(Tellado Decl. ¶ 12, Ex. 11.) Tesla received no response. (Tellado Decl. ¶ 12.)
On December 15, 2022, Tesla followed-up with BSL regarding the arbitration agreements
26
and to detail receipt of an additional 194 personnel file requests sent “in direct violation of the
27
Court’s order staying the Vaughn action.” (Tellado Decl. ¶ 13, Ex. 12.) As stated therein, “the
28
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Holland & Knight LLP
400 S. Hope, 8th Floor
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Tel.: 213.896.2400 Fax: 213.896.2450
1
individuals for which you seek personnel files clearly fall within the allegedly aggrieved group in
2
the Vaughn matter, and as such, are subject to the litigation exception” to producing files. (Id.)
3
Plaintiffs then sat on their rights until March 29, 2023, when they filed the Complaint. 2
4
E.
5
Plaintiffs’ Complaint alleges that Tesla “has routinely shirked its duties under the Labor
Plaintiffs’ PAGA Allegations
6
Code by failing to provide current and former employees with complete personnel records, time and
7
pay records, and signed instruments upon the request of the current or former employee.” Compl. ¶
8
2. Therefore, “Plaintiffs seek civil penalties for the[se] above acts, which violate the Labor Code,
9
plus injunctive relief, and attorney’s fees and costs.” Compl. ¶ 3. Plaintiffs allege that the
10
“aggrieved employees” are those who worked, directly or indirectly, for Tesla “who requested but
11
were not provided timely and/or complete personnel records, including but not limited to time and
12
pay records, signed arbitration agreements, and documents concerning grievances.” Id. ¶ 12. Tesla
13
purportedly “failed to produce complete personnel records for more than 500 current or former
14
employees who were employed by Tesla, and/or who were employed at Tesla through a staffing
15
agency, that have been requested by counsel to the Representative Plaintiffs.” Id. ¶ 15.
16
Plaintiffs state that the basis of their suit is the purported non-production of files relevant to
17
Vaughn. See id. ¶¶ 20-27; 37. For example, Plaintiffs aver that “over 500 Aggrieved Employees
18
have issued written requests to Defendant for copies of their personnel records. . . such records were
19
to include all records relating to Representative Plaintiffs’ and Aggrieved Employees’ performance
20
and grievances concerning the Plaintiffs.” These requests are the “Personnel Records Request and
21
Privacy Waiver[s]” in the “Tesla Class Action” – Vaughn. Plaintiffs allege that “[o]n March 7,
22
2020, Representative Plaintiff Smith made a written complaint of discrimination and harassment to
23
Tesla’s Human Resources,” and “[d]uring her employment, Representative Plaintiff Green sent an
24
email to Tesla employees Thomas Dunning and Jonathan [LNU] reporting that he had been called
25
26
27
28
Tesla presumes this was because of uncertainty on how PAGA actions could proceed after Viking River
Cruises. But, on February 2, 2023, the Fifth Appellate District issued its decision in Galarasa v. Dolgen California,
LLC, No. F082404, _ Cal.App.5th _ (as modified February 24, 2023), holding that individual PAGA claims could be
compelled to arbitration, but not the representative portion of the claim. This was the first Court of Appeal decision
post Viking River to analyze and address the impact of that case on PAGA waivers.
2
9
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO STRIKE PLAINTIFFS’
COMPLAINT WITHOUT LEAVE TO AMEND PURSUANT TO CCP § 425.16
PDF Page 16
1
the N-word and threatened by a coworker,” Compl. ¶¶ 21-22, but Tesla supposedly failed to
2
produce such records. Compl. ¶¶ 24-25. It is Tesla’s purported non-production of records covered
3
by the Vaughn discovery process and stay that is the basis for the PAGA Complaint here. The
4
entire Complaint is based on Tesla’s refusal to violate Court orders establishing a discovery process
5
and staying proceedings, and invocation of statutory privileges not to produce records. 3
6
III.
7
The anti-SLAPP statute is designed to address “lawsuits brought primarily to chill the valid
8
exercise of the constitutional rights of freedom of speech and petition for the redress of grievances.”
9
Cal. Code Civ. Proc. (“CCP”) § 425.16(a). The statute provides in part that:
10
Holland & Knight LLP
400 S. Hope, 8th Floor
Los Angeles, California 90071
Tel.: 213.896.2400 Fax: 213.896.2450
LEGAL STANDARD
12
A cause of action against a person arising from any act of that person in furtherance
of the person’s right of petition or free speech under the United States Constitution or
the California Constitution in connection with a public issue shall be subject to a
special motion to strike, unless the court determines that the plaintiff has established
there is a probability that the plaintiff will prevail on the claim.
13
CCP § 425.16(b)(1). The anti-SLAPP statute “shall be construed broadly” and protects making (1)
14
any written or oral statement or writing before a legislative, executive, or judicial proceeding, or
15
any other official proceeding authorized by law, (2) any written or oral statement or writing in
16
connection with an issue under consideration or review by a legislative, executive, or judicial body,
17
or any other official proceeding authorized by law, (3) any written or oral statement or writing in a
18
place open to the public or a public forum in connection with an issue of public interest, or (4) any
19
other conduct in furtherance of the exercise of the constitutional right of petition or the
20
constitutional right of free speech in connection with a public issue or an issue of public interest.
21
CCP § 425.16(e). A court “shall” strike claims arising from protected speech unless the party
22
asserting the claim can prove there is a probability of prevailing. Id.
11
23
24
25
26
27
28
Anti-SLAPP motions trigger a two-part burden-shifting test. First, “the party moving to
strike a cause of action has the initial burden to show that the cause of action arises from an act in
Even Tesla’s non-production of materials that it did not, and have never possessed, but which would have
been subject to discovery in Vaughn, forms the basis of Plaintiffs’ Complaint. See Compl. ¶ 23 (re: inability to produce
Taylor’s records because Tesla had no employee by that name and thus no records to produce). The Complaint
confirms that Plaintiff Taylor worked for West Valley Staffing and not directly for Tesla (and thus why Tesla could not
locate any individual on its employee roster by the name of “Sharonda Taylor.”). See Compl. ¶ 6.
3
10
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO STRIKE PLAINTIFFS’
COMPLAINT WITHOUT LEAVE TO AMEND PURSUANT TO CCP § 425.16
PDF Page 17
Holland & Knight LLP
400 S. Hope, 8th Floor
Los Angeles, California 90071
Tel.: 213.896.2400 Fax: 213.896.2450
1
furtherance of the moving party’s right of petition or free speech.” Salma v. Capon, 161 Cal. App.
2
4th 1275, 1283 (2008) (internal citation omitted). This is not a high burden, one that “a defendant
3
meets…by demonstrating that the act underlying the plaintiff’s cause fits one of the categories
4
spelled out in section 425.16, subdivision (e).” Navellier v. Sletten, 29 Cal. 4th 82, 88 (2002);
5
Equilon Enterprises v. Consumer Cause, Inc., 29 Cal. 4th 53, 67 (2002). A defendant only must
6
establish the potential applicability of the anti-SLAPP statute and need not address the substantive
7
merits of the claim. Tuchscher Dev. Enters., Inc. v. San Diego Unified Port Dist., 106 Cal. App.
8
4th 1219, 1234-35 (2003). It is the claim’s “principal thrust or gravamen” that determines whether
9
the anti-SLAPP statute applies. Martinez v. Metabolife Int’l, Inc., 113 Cal. App. 4th 181, 188
10
(2003).
11
Second, the burden shifts to the opposing party to demonstrate that it will prevail on the
12
challenged claim. CCP § 425.16(b)(2); Kyle v. Carmon, 71 Cal. App. 4th 901, 907 (1999). A plaintiff
13
must to show that there is admissible evidence that, if credited, would be sufficient to sustain a
14
favorable judgment. Navellier, 29 Cal. 4th at 89, 93; Taus v. Loftus, 40 Cal. 4th 683, 714 (2017).
15
The Court must evaluate “the merits of the plaintiff’s claim using a summary-judgment-like
16
procedure at an early stage of the litigation.” Contreras v. Dowling, 4 Cal. App. 5th 774, 784 (2016)
17
(internal quotations omitted); Tichinin v. City of Morgan Hill, 177 Cal. App. 4th 1049, 1062 (2009)
18
(courts “employ a standard similar to that employed in determining nonsuit, directed verdict or
19
summary judgment motions”). “In opposing an anti-SLAPP motion, the plaintiff cannot rely on the
20
allegations of the complaint, but must produce evidence that would be admissible at trial.” HMS
21
Capital, Inc. v. Lawyers Title Co., 118 Cal. App. 4th 204, 212 (2004); see also Thayer v. Kabateck
22
Brown Kellner LLP, 207 Cal. App. 4th 141, 160 (“[A party] cannot rely on her complaint, even if
23
verified, to demonstrate a probability of success on the merits.”). If the Court finds that a defendant
24
has made a threshold showing that the causes of action arise from protected activity, and that a
25
plaintiff has not shown a probability that she will prevail, it must grant the special motion to strike.
26
See Varian Med. Systems, Inc. v. Delfino, 35 Cal. 4th 180, 192 (2005). This is the case here.
27
28
11
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO STRIKE PLAINTIFFS’
COMPLAINT WITHOUT LEAVE TO AMEND PURSUANT TO CCP § 425.16
PDF Page 18
1
IV.
PLAINTIFFS’ ENTIRE PAGA COMPLAINT ARISES FROM TESLA’S
2
PROTECTED PETITIONING AND FREE SPEECH ACTIVITY
3
Prong 1 of the anti-SLAPP test requires that the Court determine what conduct forms the basis
4
for the challenged cause of action and whether it is protected activity. Thayer, 207 Cal. App. 4th at
5
153-4 (“The ‘crucial consideration’ is what the cause of action is ‘based on.’”). This not a question
6
of the “form of the plaintiff’s cause of action, but, rather, [of] the defendant’s activity that gives rise
7
to his or her asserted liability—and whether that activity constitutes protected speech or petitioning.”
8
Navellier, 29 Cal. 4th at 92. “[S]ection 425.16 encompasses any cause of action against a person
9
arising from any statement or writing made in, or in connection with an issue under consideration or
Holland & Knight LLP
400 S. Hope, 8th Floor
Los Angeles, California 90071
Tel.: 213.896.2400 Fax: 213.896.2450
10 review by, an official proceeding or body.” Briggs v. Eden Council for Hope & Opportunity, 19 Cal.
11 4th 1106, 1113 (1999). “A statement is in connection with an issue under consideration by a court in
12 a judicial proceeding within the meaning of clause (2) of [CCP] section 425.16, subdivision (e) if it
13 relates to a substantive issue in the proceeding and is directed to a person having some interest in the
14 proceeding.” Crossroads Invs., L.P. v. Fed. Nat’l Mortg. Assn., 13 Cal. App. 5th 757, 779 (2017)
15 (“Fannie Mae”) (internal quotations and citations omitted).
16
Plaintiffs’ claim giving rise to liability is that Tesla refused to produce documents at Plaintiffs’
17 request. But Tesla’s action is a direct assertion of its statutory litigation privilege not to produce
18 documents (Lab. Code 1198.5(n)). This is textbook protected activity. See Briggs, 19 Cal. 4th at 92.
19 And, Tesla’s refusal to violate this Court’s stay order and Court-ordered discovery procedures in
20 Vaughn—including the personnel-file-request process—is protected activity. See Fannie Mae, 13
21 Cal. App. 5th at 779 (“We also conclude Fannie Mae’s omissions to respond to the requests made
22 while the bankruptcy action was pending and prior to Fannie Mae being relieved from the stay were
23 protected activity because they were made in connection with issues under review in the bankruptcy
24 proceeding.”).
25
To recap, in Vaughn, Tesla brought motions to tame BSL’s incessant personnel file requests.
26 The Court devised a discovery procedure for BSL to submit personnel file requests to Tesla and for
27 Tesla to respond to the same. But once the Court stayed discovery, Plaintiffs’ counsel went outside
28
12
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO STRIKE PLAINTIFFS’
COMPLAINT WITHOUT LEAVE TO AMEND PURSUANT TO CCP § 425.16
PDF Page 19
1
of the established process and continued serving personnel file requests. Tesla’s refusal to produce
2
the demanded materials pursuant to the Vaughn stay is fundamentally protected activity within the
3
anti-SLAPP statute. See id. Even after the Vaughn stay dissolved, Tesla’s refusal to produce outside
4
of the Court-ordered discovery process in Vaughn—the supposed basis for liability in this PAGA
5
action—is still protected activity. See id. at 782 (“Crossroads’ claims based on Fannie Mae’s
6
responses and omissions to its requests for accountings made after the stay was lifted thus arose from
7
protected activity.”) (emphasis added).
Holland & Knight LLP
400 S. Hope, 8th Floor
Los Angeles, California 90071
Tel.: 213.896.2400 Fax: 213.896.2450
8
Plaintiffs’ sole cause of action, for PAGA penalties, arises directly from Tesla’s actions
9
relating to a substantive issue in Vaughn. Tesla’s actions are thus protected activity. 4
10
V.
11
PLAINTIFFS HAVE NO LIKELIHOOD OF PREVAILING ON THE COMPLAINT
Because Tesla’s acts giving rise to Plaintiffs’ Complaint are protected activity, “the burden
12
shifts to the plaintiff to demonstrate that each challenged claim based on protected activity is legally
13
sufficient and factually substantiated.” Baral v. Schnitt, 1 Cal. 5th 376, 395 (2016). This is Prong 2,
14
which Plaintiffs must establish through summary-judgment-appropriate/trial-admissible evidence.
15
See Damon v. Ocean Hills Journalism Club, 85 Cal. App. 4th 468, 480 (2000); HMS Capital, Inc.,
16
118 Cal. App. 4th at 212. After setting aside improper evidence, the Court then must determine
17
whether the plaintiff has pled sufficient facts to uphold a judgment in his favor if plaintiff’s
18
remaining evidence, if any, is credited. See Barry v. State Bar of California, 2 Cal. 5th 318, 321
19
20
21
22
23
24
25
26
27
28
The litigation privilege set forth in Civil Code section 47(b) is instructive for the anti-SLAPP inquiry as
“[b]oth the Supreme Court and the Court of Appeal ‘have looked to the litigation privilege as an aid in construing the
scope of section 425.16, subdivision (e)(1) and (2) with respect to the first step of the two-step anti-SLAPP inquiry—
that is, by examining the scope of the litigation privilege to determine whether a given communication falls within the
ambit of subdivision (e)(1) and (2).’” Feldman v. 1100 Park Lane Assocs., 160 Cal. App. 4th 1467, 1479 (2008), citing
Flatley v. Mauro, 39 Cal. 4th 299, 322-323 (2006); see also Navellier v. Sletten, 106 Cal. App. 4th 763, 770 (2003)
(protections afforded by the statute and the privilege are not entirely coextensive, but “privilege informs interpretation
of the ‘arising from’ prong of the anti-SLAPP statute [citation]”). Like the anti-SLAPP statute, Civ. Code section 47(b)
has been construed to apply to “any communication (1) made in judicial or quasi-judicial proceedings; (2) by litigants
or other participants authorized by law; (3) to achieve the objects of the litigation; and (4) that have some connection or
logical relation to the action.” Silberg v. Anderson, 50 Cal. 3d 205, 212 (1990). Applying this test to Tesla’s refusal to
produce pursuant to the personnel file requests yields the same result—that Tesla’s conduct is protected activity.
Tesla’s refusal to produce was made in a judicial proceeding, by a litigant, to achieve the objects of the litigation (i.e.,
defending the claim and respecting the Court’s order), to achieve the objects of the litigation (i.e., defending the claim),
and the communication/action of not producing has a connection to the action as it falls within the ambit of the Vaughn
discovery orders setting forth a production process.
4
13
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO STRIKE PLAINTIFFS’
COMPLAINT WITHOUT LEAVE TO AMEND PURSUANT TO CCP § 425.16
PDF Page 20
Holland & Knight LLP
400 S. Hope, 8th Floor
Los Angeles, California 90071
Tel.: 213.896.2400 Fax: 213.896.2450
1
(2017). “An anti-SLAPP motion should be granted when the non-moving party presents an
2
insufficient legal basis for the claims or ‘when no evidence of sufficient substantiality exists to
3
support a judgment for the [non-moving party].’” Wilcox v. Superior Court, 27 Cal. App. 4th 809,
4
828 (1994). Even still, proof of a valid defense is relevant to determine a lack of probability of
5
prevailing. No Doubt v. Activision Publishing, Inc., 192 Cal. App. 4th 1018, 1026 (2011). There is
6
no probability of prevailing on the only claim here.
7
A.
The Litigation Privilege (Civ. Code § 47(b)) is an Absolute Bar to Liability
8
A party cannot establish the probability of prevailing in the anti-SLAPP context “if the
9
litigation privilege precludes the defendant’s liability on the claim.” Fremont Reorganizing Corp.
10
v. Faigin, 198 Cal. App. 4th 1153, 1172 (2011). That is exactly the case here. The litigation
11
privilege “applies to any publication required or permitted by law in the course of a judicial
12
proceeding to achieve the objects of the litigation, even though the publication is made outside the
13
courtroom and no function of the court or its officers is involved.” Silberg, 50 Cal. 3d at 212; see
14
also Cal. Civ. Code § 47(b) (“a privileged publication is one made…in any…judicial proceeding”).
15
The “litigation privilege is held to be absolute in nature,” Silberg, 50 Cal. 3d at 215, so absolute that
16
it protects conduct even if it is “alleged to be fraudulent, perjurious, unethical, or even illegal.”
17
Kashian v. Harriman, 98 Cal. App. 4th 892, 920 (2002); see also Steiner v. Eikerling, 181 Cal.
18
App. 3d 639, 642 (1986) (litigation privilege applies to bar fraud claim); Bergstein v. Stroock &
19
Stroock & Lavan LLP, 236 Cal. App. 4th 793, 815 (2015) (litigation privilege applies to bar claims
20
for breach of fiduciary duty and aiding and abetting breach of fiduciary duty).
21
Here, the conduct which forms the basis of the PAGA Complaint—refusing to produce
22
documents on the basis of statutory privilege and following court orders—is protected by the
23
litigation privilege. Tesla’s action and statements refusing to produce, grounded in statute and
24
Court order, were made in a judicial proceeding (Vaughn) or in anticipation of this Superior Court
25
action after Plaintiffs filed the PAGA Notices, Tesla is a litigant, and the action was undertaken in
26
furtherance of Tesla’s defense to Vaughn’s claims. Finally, there is necessarily a connection
27
between, on the one hand, Tesla refusing to produce personnel files for Vaughn putative class
28
14
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO STRIKE PLAINTIFFS’
COMPLAINT WITHOUT LEAVE TO AMEND PURSUANT TO CCP § 425.16
PDF Page 21
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1
members outside of discovery in Vaughn, and on the other hand, the Court’s imposed discovery
2
process for requesting and producing personnel files for Vaughn putative class members in
3
discovery in Vaughn. See, e.g., Fannie Mae, 13 Cal. App. 5th at 780 (“[A]t the time Crossroads
4
asked Fannie Mae for the cure amount, it was litigating in bankruptcy court what that amount could
5
legally be under California law. The out-of-court requests for the accountings and Fannie Mae’s
6
failure to respond to them were thus made in connection with issues under consideration by the
7
bankruptcy court.”)
8
B.
Leave to Amend Should Be Denied
9
Plaintiffs cannot show any probability of success because their entire complaint is based on
10
Tesla’s protected petitioning activity. No amount of additional amendment, adding different causes
11
of action, or attempting to cure a facially retaliatory pleading, can erase that the Complaint alleges
12
that Tesla’s protected activity is what gives rise to liability. Plaintiffs should be denied leave to
13
amend in the face of Tesla’s anti-SLAPP motion, particularly where it would be futile to do so. See
14
City of Colton v. Singletary, 206 Cal. App. 4th 751, 775 (2012) (a party may not “amend around” an
15
anti-SLAPP motion).
16
VI.
17
18
19
20
21
22
23
24
25
CONCLUSION
For the reasons set forth above, Plaintiffs’ Complaint should be struck, in its entirety, without
leave to amend.
Dated: May 12, 2023
HOLLAND & KNIGHT LLP
HOLLAND & KNIGHT LLP
Sara A. Begley
Christina Tellado
Samuel J. Stone
Mary T. Vu
Attorneys for Defendant
TESLA, INC.
26
27
28
15
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO STRIKE PLAINTIFFS’
COMPLAINT WITHOUT LEAVE TO AMEND PURSUANT TO CCP § 425.16
PDF Page 22
1
PROOF OF SERVICE
2
3
STATE OF CALIFORNIA
4
COUNTY OF LOS ANGELES
5
I am employed in the County of Los Angeles, State of California. I am over the age of 18
and not a party to the within action. My business address is 400 S. Hope Street, 8th Floor, Los
Angeles, California 90071.
6
7
8
9
Holland & Knight LLP
400 S. Hope, 8th Floor
Los Angeles, California 90071
Tel.: 213.896.2400 Fax: 213.896.2450
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
)
)
)
ss.
On May 12, 2023 I caused the foregoing document described as MEMORANDUM OF POINTS
AND AUTHORITIES IN SUPPORT OF TESLA, INC.’S SPECIAL MOTION TO STRIKE
PLAINTIFFS’ COMPLAINT WITHOUT LEAVE TO AMEND PURSUANT TO C.C.P.
425.16 to be served on the interested parties in this action as follows:
CALIFORNIA CIVIL RIGHTS LAW
BRYAN SCHWARTZ LAW
GROUP
Bryan Schwartz (SBN 209903)
Lawrence Organ, Esq.
180 Grand Ave, Suite 1380
332 San Anselmo Avenue
Oakland, California 94612
San Anselmo, CA 94960
Email: bryan@bryanschwartzlaw.com
Tel. (415) 453-4740
Fax (415) 785-7352
Email: larry@civilrightsca.com
ATTORNEYS FOR PLAINTIFF
[ X ] BY EMAIL (CCP §§ 1013(a)) Based on a court order or an agreement of the parties to
accept service by e-mail or electronic transmission, I caused the document(s) to be sent to the
person(s) at the e-mail address(es) indicated above. I did not receive, within a reasonable time
after the transmission, any electronic message or other indication that the transmission was
unsuccessful.
[ X ] BY MAIL: I enclosed the document(s) in a sealed envelope or package addressed to the
persons at the addresses listed above and placed the envelope for collection and mailing, following
our ordinary business practices. I am readily familiar with Holland & Knight LLP’s practice for
collecting and processing correspondence for mailing. On the same day that the correspondence
is placed for collection and mailing, it is deposited in the ordinary course of business with the
United States Postal Service, in a sealed envelope with postage fully prepaid.
[ X ] (STATE) I declare under penalty of perjury under the laws of the State of California that
the above is true and correct.
Executed on May 12, 2023 at Los Angeles, California.
25
Carolina Del Real
26
27
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1
PROOF OF SERVICE
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