If an
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To do so, you must contact Court Call at (888) 882-6878 no later than 4:30
p.m. on the court day prior to the hearing.
In the Superior Court of the State of
In and for the
Presiding Judge -
Law and Motion Calendar
Judge:
Honorable beth labson freeman,
acting presiding judge
Department 3
400 County Center,
Courtroom 2L
JUly 29, 2009 |
If you plan to appear
on any case on this calendar,
you must call (650)
363-4805 before 4:00 p.m.
|
|
Case
Title / Nature of Case |
9:00
6
CIV 484400
MARTIN EBERHARD VS ELON MUSK
MARTIN EBERHARD
YOSEF PERETZ
ELON MUSK
GARY M. GANSLE
MOTION FOR SPECIAL MOTION
TO STRIKE PORTIONS OF COMPLAINT AS SLAPP (CCP §425.16) FILED BY ELON MUSK AND TESLA
MOTORS, INC.
·
The “Statement of Intent to Introduce
Oral Testimony” submitted by Plaintiff is not referenced in CRC 3.1306(b). To the
extent that the Court considers said Statement of Intent to Introduce Oral Testimony
to constitute the required Request to Introduce Oral Testimony, the request to introduce
oral testimony is DENIED. The Plaintiff
has not shown the “nature and extent” of the proposed testimony, a “reasonable time
estimate for the hearing” thereof, and has not in any other way made the required
good cause showing that is a prerequisite
for such oral testimony. The determination
of the Motions submitted will be based upon the evidence presented by declarations
submitted with the Motions.
·
Plaintiff’s evidentiary objections
are OVERRULED as to Objections Nos.
1-30, 32-33 and SUSTAINED as to Objection Nos. 31 and 34.
·
Defendants’ evidentiary objections
are OVERRULED as to Objections Nos. 1-18, 20-26, 28-35, 37-45, 48-115, 118-143 and
SUSTAINED as to Objection Nos. 19, 27, 36, 46-47 and 116-117.
·
Plaintiff’s request for judicial
notice is GRANTED.
·
The Court must undertake a two-step
process in determining the merits of a SLAPP motion.
First, the Court must decide if the
Defendants have made a threshold showing that the challenged causes of action arose
from protected activity. If the Defendants fail to satisfy this burden, the challenged
causes of action are not subject to a motion to strike.
If the Court finds such a showing
has been made, it must then determine whether the Plaintiff has demonstrated a probability
of prevailing on the claims. (
·
In this case, the Defendants
have made a prima facie showing the
challenged cause of action arises from an act in the furtherance of free speech.
(Code
of Civ. Proc. §425.16(e)(3) and (e)(4).)
Plaintiff has not defeated the
Defendants’ threshold showing that the causes of action were protected activity
by the Defendant. As to the second
prong of the SLAPP analysis, however, the Court finds that the Plaintiff has demonstrated
a probability that he will prevail on the challenged causes of action.
Defendants’ Special Motion to Strike the 1st, 2nd,
3rd, 6th and 11th causes of action of Plaintiff’s
Complaint is, therefore, DENIED:
o
As to the First and Second Causes
of Action (Defamation) Plaintiff has established a probability he could prevail
on at least some of his defamation/libel claims relating to statements made by MUSK,
including but not limited to, that Plaintiff caused the financial issues at TESLA,
that he left a “mess” when he left the company, that he caused the delays in the
production of the Roadster, and that MUSK had to spend a lot of time correcting
all the errors made by Plaintiff.
(Complaint, ¶¶89-102; Exhibits. 24-30.)
o
As to the Third Cause of Action
(Injunctive Relief), because Plaintiff has shown the probability he may prevail
on the merits of a portion of his defamation claims, he may also prevail on his
claim for injunctive relief. An injunction
which does no more than prohibit Defendants from repeating the defamation is not
a prior restraint and does not offend the First Amendment.
(Balboa Island Village Inn v.
Lemen (2007) 40 Cal.4th 1141,
1148.)
o
As to the Sixth Cause of Action
(Declaratory Relief), an anti-SLAPP motion is not the proper mechanism to use to
contest the validity of this cause of action.
Rather, the separate motion to strike under Code of Civil Procedure §436
et seq contemporaneously filed herewith
fully and adequately addresses this dispute.
o
As to the Eleventh Cause of Action
(Negligence), the Complaint does not predicate this cause of action solely upon
Defendants’ alleged defamatory statements.
·
Neither
these determinations, however, that
there is a probability that the Plaintiff will prevail on these causes of action,
nor the fact that said determinations were made, shall be admissible for any purpose,
nor shall it affect any burden of proof, in any later stage of these or related
proceedings. (Code
Civ. Proc., §425.16(b)(3).)
·
Responding party shall prepare and submit a formal order complying with
·
If the tentative ruling is uncontested, it shall become the order of the court,
pursuant to Rule 3.1308(a)(1), adopted by Local Rule 3.10.
MOTION TO STRIKE PORTIONS
OF COMPLAINT FILED BY ELON MUSK AND TESLA MOTORS, INC.
·
Defendants’ Motion to Strike
Portions of Plaintiff’s Complaint is DENIED IN PART and GRANTED IN PART as follows:
o
DENIED as to “Count One” of the
Fourth Cause of Action. A determination
as to whether Plaintiff breached the Nondisparagement clause of the BOD Resignation
Agreement would require interpretation of the contract and its terms, which is improper
on a motion to strike.
o
DENIED as to “Count Three” of
the Fourth Cause of Action. In ruling
on a motion to strike, the Court is limited to the face of the pleadings and any
information it may judicially notice.
(Code
of Civ. Proc. §437.)
The evidence of the upgrade may not be considered by the Court. Thus, there
are no grounds upon which to grant the motion to strike.
o
GRANTED as to “Count One” of
the Sixth Cause of Action. Plaintiff
is improperly requesting the Court make factual determinations, as opposed to a
declaration regarding the parties’ legal rights and obligations.
o
GRANTED as to “Count Two” of
the Sixth Cause of Action. This count
is duplicative of the fourth and fifth causes of action asserted in the Complaint.
·
Moving party shall prepare and submit a formal order complying with
·
If the tentative ruling is uncontested, it shall become the order of the court,
pursuant to Rule 3.1308(a)(1), adopted by Local Rule 3.10.
DEMURRER TO COMPLAINT
OF EBERHARD FILED BY ELON MUSK AND TESLA MOTORS, INC.
·
Plaintiff’s request for judicial
notice is GRANTED as to the existence of the complaints and demurrers in the other
actions. However, the Court may not
take judicial notice of the truth of the statements contained therein.
·
Defendants’ Demurrer to the 3rd
and 7th through 9th causes of action of Plaintiff’s Complaint
is OVERRULED in its entirety.
·
Responding party shall prepare and submit a formal order complying with
·
If the tentative ruling is uncontested, it shall become the order of the court,
pursuant to Rule 3.1308(a)(1), adopted by Local Rule 3.10.
_____________________________________________________________________
Source https://web.archive.org/web/20090804064818/http://www.sanmateocourt.org/director.php?filename=./tentrul/wed.htm