1

Filed 8/30/24 (unmodified opn. attached)

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FOUR

SHARONDA TAYLOR et al.,

Plaintiffs and Respondents,

v.

TESLA, INC.,

Defendant and Appellant.

A168333

(Alameda County Super. Ct.

No. 23CV028922)

ORDER MODIFYING OPINION; 

NO CHANGE IN JUDGMENT

BY THE COURT:*

The court orders that the opinion filed in this appeal on August 8, 2024, 

be modified as follows:

1. On page 7, in the last sentence of the paragraph that continues from 

page 6, add quotation marks around the word “omissions,” so the 

sentence reads:

Claiming to have been taken by surprise, Crossroads sued Fannie 

Mae, seeking to rescind the sale on the ground that deceptive 

statements and “omissions” by Fannie Mae in the bankruptcy 

proceedings deprived it of its statutory redemption rights.

2. On page 10, in the first paragraph that begins “It seems clear,” delete 

the third sentence that reads (retaining footnote five):

* Brown, P. J., Streeter, J., Hite, J. (Judge of the Superior Court of 

California, City and County of San Francisco, assigned by the Chief Justice 

pursuant to article VI, section 6 of the California Constitution.)
2 

We note that the “omissions” in Crossroads—information 

withheld in discovery and a silently communicated rejection of 

settlement overtures—necessarily expressed a message. 

Insert in place of the deleted sentence indicated above, continuing 

within the same paragraph, the following substitute language (ending 

with footnote 5): 

We do note that the “omissions” in Crossroads—apparently, 

information withheld in discovery and a silently communicated 

rejection of settlement overtures—necessarily expressed a 

message pertinent to the tort causes of action at issue there. 

3. On page 17, In the second sentence of the first paragraph, delete the 

language “made no effort to produce anything” and replace with the 

language “produced virtually nothing” so the sentence reads: 

Faced with many requests for information that had nothing to do 

with the allegations in Vaughn, Tesla produced virtually nothing. 

The modifications effect no change in the judgment. 

Date: _________________________ ___Brown________________P. J.
3

Trial Court: Superior Court of California, County of Alameda 

Trial Judge: Hon. Julia Spain 

Counsel: Reed Smith, Raymond A. Cardozo; Holland & Knight and 

Christina T. Tellado for Defendant and Appellant. 

Nichols Kaster, Matthew C. Helland, Jasjit Mundh; 

California Civil Rights Law Group, Lawrence Organ; 

Bryan Schwartz Law and Bryan Schwartz for Plaintiffs 

and Respondents.
1 

Filed 8/8/24 (unmodified opinion)

CERTIFIED FOR PUBLICATION 

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA 

FIRST APPELLATE DISTRICT 

DIVISION FOUR 

SHARONDA TAYLOR et al.,

 Plaintiffs and Respondents, 

v. 

TESLA, INC., 

 Defendant and Appellant. 

 A168333

 (Alameda County Super. Ct. 

 No. 23CV028922) 

 

In this Private Attorneys General Act of 2004 (PAGA) (Lab. Code, 

§ 2698 et seq.) action, Tesla Inc. (Tesla) appeals from the denial of a motion 

under the anti-SLAPP statute (Code Civ. Proc., § 425.16).1 Seeing no merit 

to any of Tesla’s arguments, we affirm. 

I.

Plaintiffs Sharonda Taylor, Shaka Green, Tatianna Smith and Zenobia 

Milligan worked for Tesla for different periods between July 2015 through 

March 2022. Through their counsel, Bryan Schwarz Law (BSL), they each 

requested that Tesla provide them with certain personnel records pursuant to 

the California Labor Code. 

BSL serves as counsel for the plaintiffs in Vaughn v. Tesla, Alameda 

County Superior Court No. RG17882082 (Vaughn), a class action filed 

1 All undesignated statutory references are to the Code of Civil 

Procedure. 
2

against Tesla on November 13, 2017. As alleged, the Vaughn class consists of 

“all African-Americans who were employed on the production floor at the 

Tesla Factory at any time from November 9, 2016 to the final disposition of 

[the Vaughn] action.” During the pendency of this appeal, a class 

certification order issued in Vaughn.2

Taylor, Green, Smith, and Milligan are members of the Vaughn class. 

On behalf of the class, the Vaughn complaint alleges racial discrimination 

and racial harassment claims against Tesla under the Fair Employment and 

Housing Act. These allegations of race discrimination in Vaughn have been 

closely watched and widely reported on by the press. 

Prior to certification of the Vaughn class, considerable discovery 

activity took place. This discovery activity included a series of motions to 

compel and an associated motion for a protective order in the summer 2020. 

The motions focused generally on BSL’s attempt to obtain witness contact

information, internal complaints and investigation materials pertaining to 

incidents of racial harassment at Tesla.

In June 2020, the Vaughn court issued orders addressing the issues 

raised in these discovery motions, including the manner in which privacy 

notices to absent class members should be handled.3 In its orders, the 

Vaughn court suggested “by way of observation” that the parties “might 

consider” including “an opt-in privacy waiver for review of complaint and 

personnel files.” This suggestion was designed to confine the universe of 

2 On our own motion, we take judicial notice of the May 17, 2024 class 

certification order in Vaughn. (Evid. Code, § 452, subds. (c)–(d).)

3 See Belaire-West Landscape, Inc. v. Superior Court (2007) 

149 Cal.App.4th 554, 561 (approving privacy waiver opt-in procedure in precertification class discovery where defendant employer was being required to 

provide confidential personnel information about absent class members). 
3 

“files to be reviewed” to those who signed privacy waivers, thus limiting the 

pre-certification discovery burden on Tesla. 

 A few months later, the Vaughn court ordered Tesla to produce 

complaints pertaining to incidents of racial harassment (including 

investigation and resulting discipline), but only for those complaining 

workers who signed a privacy waiver. In accordance with this order, from 

October to November 2020, BSL sent Tesla privacy waivers in five batches, 

after which Tesla was to produce the waivants’ race harassment complaints. 

Beginning in October 2020, on behalf of hundreds of Tesla employees 

for whom privacy waivers were provided, BSL sent Tesla a series of statutory 

personnel records requests under Labor Code sections 226, 432, and 1198.5. 

The requestors included Milligan, Taylor, Green and Smith. BSL 

resubmitted the personnel records requests for Taylor and Milligan in early 

2021, apparently after Tesla questioned whether the digital signatures on the 

privacy waivers accompanying the first set of requests for these two 

individuals were adequate. 

 Later in 2021, other procedural events in Vaughn impacted the 

timetable for Tesla’s compliance with these discovery and Labor Code records 

requests. In September 2021, the Vaughn court granted in part and denied 

in part Tesla’s motion to compel arbitration of the claims brought by two 

Vaughn plaintiffs, and Tesla appealed. The court then stayed all trial court 

proceedings in Vaughn until the appeal was resolved. 

In February 2022, Tesla’s counsel wrote to BSL and took the position 

that the Vaughn stay suspended any obligation to respond to the pending 

Labor Code records requests. In line with that position, Tesla produced 

nothing in response to these requests. Having received no responses to its 

information requests under the Labor Code, on April 19, 2022, BSL sent a
4 

letter to the California Labor and Workforce Development Agency (LWDA) on 

behalf of Taylor, Green, Smith, and Milligan alleging PAGA violations. 

In its letter to LWDA, BSL argued that “internal complaints made by 

an employee and evidence of an ensuing non-attorney investigation are 

included within the definition of personnel files.” It also argued that Tesla 

had “repeatedly provided deficient personnel files in violation of Labor Code 

§ 1198.5” by not “includ[ing] any record of internal complaints that were 

made by the requesting employee or former employee or any resulting 

investigation.” BSL further asserted that Tesla’s productions of personnel 

records were deficient because Tesla “routinely omitted requestors’ job 

applications and any of the documents that the requestor signed at the start 

of employment” and had produced some documents, such as “performance 

reviews . . . in unintelligible formats, such as tables that are split across 

dozens of pages with no indication of their actual organization.” 

In January 2023, Division Five of this court affirmed the Vaughn

court’s partial denial of Tesla’s motion to compel arbitration. (Vaughn v. 

Tesla, Inc. (2023) 87 Cal.App.5th 208.) Following the issuance of the 

remittitur in that appeal, the stay on proceedings in Vaughn was lifted. The 

allegations of Labor Code violations in BSL’s notice letter to the LWDA 

remained live, however, since by then Tesla had been delinquent in 

responding to the statutory records requests for the better part of a year. 

This PAGA action followed. On March 7, 2023, represented by BSL, 

plaintiffs filed their PAGA complaint seeking penalties for Tesla’s failure to 

respond to Labor Code personnel records requests. The complaint alleges a 

single cause of action alleging as predicate violations Tesla’s refusal to 

comply with Labor Code sections 1198.5, 226, and 432. Tesla answered and 

filed a special motion to strike pursuant to the anti-SLAPP statute. 
5 

The trial court denied Tesla’s anti-SLAPP motion on July 7, 2023. The 

court found that “Tesla did not meet its initial burden as the movant to make 

a ‘threshold showing that [Plaintiffs’] claims arise from petitioning activity 

within the purview of the anti-SLAPP statute.’ ” “On this record,” the court 

ruled, “Plaintiffs were merely exercising their statutory rights under the 

Labor Code to inspect and copy wage statements, signed instruments, and 

personnel files, independent of anything happening in Vaughn.” 

 Now before us is Tesla’s appeal from the denial of its anti-SLAPP 

motion in the PAGA case. 

II.

We assume familiarity with the two-step framework of analysis under 

the anti-SLAPP statute. (See, e.g., Wilson v. Cable News Network, Inc. (2019) 

7 Cal.5th 871, 884–885; Area 51 Productions, Inc. v. City of Alameda (2018) 

20 Cal.App.5th 581, 593–594; id. at pp. 594–601 [first prong], 602–604 

[second prong].) Our review is de novo at both steps. (Area 51 Productions, 

at pp. 593–594.) 

A.

In support of its contention that denial of its anti-SLAPP motion was 

erroneous, Tesla relies heavily on Crossroads Investors, L.P. v. Federal 

National Mortgage Assn. (2017) 13 Cal.App.5th 757 (Crossroads). That case 

involved a lawsuit filed and pursued by a real estate investment partnership 

(Crossroads) against the Federal National Mortgage Association (Fannie 

Mae) in connection with a chapter 11 bankruptcy proceeding. (Id. at p. 769.) 

Because of the centrality of Crossroads to Tesla’s argument, we begin with an 

overview of the case. The appellate opinion there is somewhat complex, and 

to apply its holding properly, some nuances must be kept in mind. 

Crossroads, the owner of an apartment building, was the debtor on a 

mortgage loan that fell into default at the height of the mortgage foreclosure 
6 

crisis in 2011. (Crossroads, supra, 13 Cal.App.5th at p. 766.) On the day 

before a scheduled foreclosure sale, Crossroads filed for bankruptcy. (Id. at 

p. 767.) Fannie Mae was the mortgage holder and a creditor in the 

bankruptcy. Many of the alleged acts by Fannie Mae took place in the course 

of the bankruptcy proceedings while an automatic stay was in place (id. at 

pp. 767–771), but at its core the seven-count complaint Crossroads filed after 

the bankruptcy was over bore the hallmarks of a wrongful foreclosure claim. 

(See Miles v. Deutsche Bank National Trust Co. (2015) 236 Cal.App.4th 394, 

407–410.) 

Despite having sent the required written notice of default informing 

Crossroads it could reinstate the delinquent mortgage loan by tendering the 

overdue amount no later than five business days before the foreclosure sale 

(Crossroads, supra, 13 Cal.App.5th at p. 766), and despite having orally 

promised in settlement discussions that, after the automatic bankruptcy stay 

was lifted, it would give advance notice before proceeding with a foreclosure 

sale (id. at pp. 770–771), Fannie Mae allegedly sold the mortgaged property 

at a foreclosure auction immediately after the stay was lifted, without giving 

the promised notice and without providing an accounting of exactly how 

much was owed on the delinquent loan (id. at p. 771). 

Crossroads had unsuccessfully argued in bankruptcy court as part of its 

proposed plan of reorganization (which ultimately the bankruptcy court 

rejected) that it should not have to pay a prepayment penalty in order to 

redeem its mortgage loan, and it made a settlement proposal conditioned on 

Fannie Mae waiving that penalty. (Crossroads, supra, 13 Cal.App.5th at 

pp. 768–769.) In an interrogatory response in the bankruptcy proceeding, 

Fannie Mae declined to provide the exact amount of the mortgage loan 

delinquency. (Id. at p. 769.) And in the settlement discussions, Fannie Mae 

refused to accept any tender of delinquent proceeds without the prepayment 
7 

penalty. (Id. at pp. 770–771.) After the stay was lifted, Fannie Mae 

proceeded with a foreclosure sale to a willing buyer. (Id. at p. 771.) Claiming 

to have been taken by surprise, Crossroads sued Fannie Mae, seeking to 

rescind the sale on the ground that deceptive statements and omissions by 

Fannie Mae in the bankruptcy proceedings deprived it of its statutory 

redemption rights. (Id. at pp. 771–772.) 

Against this backdrop, the trial court denied Fannie Mae’s anti-SLAPP 

motion to strike the entire complaint. (Crossroads, supra, 13 Cal.App.5th at 

p. 772.) A Third District Court of Appeal panel reversed. (Id. at pp. 793–

794.)4 At the initial step of the anti-SLAPP analysis, the Crossroads panel 

concluded that the first six causes of action in the state court case—which it 

broadly termed the “tort causes of action”—were based on anti-SLAPP 

protected activity. (Crossroads, at p. 777–785.) Relying on section 425.16, 

subdivisions (e)(1) and (e)(2), the panel viewed the basis of these claims as 

protected “because (1) [Fannie Mae’s] response to the interrogatory was a 

‘writing made’ in the bankruptcy action, and (2) its omissions were ‘made in 

connection with an issue under consideration or review by’ the bankruptcy 

court.” (Id. at p. 778.)

At the second step of the anti-SLAPP analysis, the panel went on to 

find the litigation privilege applicable to all of Crossroads’s tort theories. 

(Crossroads, supra, 13 Cal.App.5th at pp. 785–787, citing Seltzer v. Barnes

(2010) 182 Cal.App.4th 953.) “[B]y concluding the anti-SLAPP statute 

applies because Crossroads’ claims arose from the response to an 

4 In a prior opinion, the panel affirmed. The California Supreme Court 

granted review, depublished the prior opinion, and transferred the case back 

to Court of Appeal for reconsideration in light of Baral v. Schnitt (2016) 

1 Cal.5th 376. (Crossroads, supra, 13 Cal.App.5th at pp. 765–766.) 
8 

interrogatory and from statements and omissions made in settlement 

discussions in the bankruptcy action and concerning issues under review in 

the bankruptcy action, we readily find those statements and omissions have 

‘some relation’ to the bankruptcy action and thus are privileged under section 

47,” the court held. (Crossroads, at p. 787.) On that basis, it directed that all 

of the tort claims be stricken for lack of minimal merit. (Id. at pp. 785–787.) 

While the litigation privilege did not apply to the breach of contract 

claim (Crossroads, supra, 13 Cal.App.5th at p. 787)—that claim involved the 

same conduct alleged in the tort claims, but without any additional element 

of deceit—the court concluded that most of Crossroads’ contract theories 

lacked minimal merit because it failed to show proof of damages or evidence 

that it had submitted valid tenders to Fannie Mae. (Id. at pp. 789–793.) One 

sliver of Crossroads’ breach of contract claim survived (alleged breach of an 

oral agreement to give notice of the foreclosure sale). (Id. at p. 788.) Except 

for this one surviving theory of breach, the contract claim too was ordered 

stricken. (Id. at pp. 793–794.) 

B.

All of the tort claims in Crossroads, as we have noted, were based on 

statements or information withheld by Fannie Mae in the course of discovery 

or settlement negotiations in a bankruptcy proceeding. Framing their 

arguments around Tesla’s contention that Crossroads controls here, the 

parties to this appeal devote a great deal of attention to whether BSL’s 

statutory personnel records requests were made “in Vaughn.” Plaintiffs 

suggest that the class discovery process in Vaughn and the statutory 

personnel records request process for individual Tesla employees proceeded 

in parallel, but independently. Tesla, on the other hand, argues that the 

class discovery process and the statutory records requests proceeded in a 

coordinated way, with the Vaughn court overseeing, issuing orders, and 
9

giving guidance relating to both. In our view, this debate over whether BSL’s 

statutory records requests were made “in Vaughn” is not particularly 

germane to Tesla’s primary step one argument. 

Under section 425.16, subdivision (e)(2), Tesla contends, “ ‘A statement 

is “in connection with” an issue under consideration by a court in a judicial 

proceeding . . . if it relates to a substantive issue in the proceeding and is 

directed to a person having some interest in the proceeding.’ ” (Crossroads, 

supra, 13 Cal.App.5th at p. 779, original italics.) But Tesla overlooks a 

crucial threshold issue. Subdivisions (e)(1) through (e)(3) of section 425.16 all 

require a “written or oral statement or writing.” Unlike the scenario in

Crossroads, this case involves no protected activity covered by section 425.16,

subdivision (e)(2) because no “written or oral statement or writing” by Tesla 

is an “element” of the PAGA claim at issue here. (Park v. Board of Trustees of

California State University (2017) 2 Cal.5th 1057, 1063.) 

At most, to the extent any communication or other expressive activity 

by Tesla is relevant, it is a matter of “incidental background.” (Bonni v. St.

Joseph Health System (2021) 11 Cal.5th 995, 1012; see Park, at p. 1064 

[drawing “distinction between activities that form the basis for a claim and 

those that merely lead to the liability-creating activity or provide evidentiary 

support for the claim”].) At trial, plaintiffs may establish predicate violations 

of Labor Code sections 226, 432, and 1198.5 in support of their PAGA claim 

without offering any writing or any oral statements by Tesla. They need only 

prove that they sent statutory demands for personnel files and never received 

any files in response. It is certainly conceivable that, for context, some party 

to the PAGA action might wish to offer, say, Vaughn discovery meet-andconfer correspondence or pleadings or orders from Vaughn—either in support 

of the PAGA claim or by way of defense to it—but if such evidence were 
10

offered, it would be relevant only as a collateral matter for background 

purposes. 

It seems clear, to be sure, why Tesla places so much weight on 

Crossroads: The case finds “omissions” as well as affirmative statements to 

be protected under section 425.16, subdivision (e). But in so holding, the 

Crossroads court does not explain why the “omissions” at issue there were 

treated as “written or oral statement[s] or writing[s]” within the meaning of 

section 425.16, subdivision (e)(1) and (2). We note that the “omissions” in 

Crossroads—information withheld in discovery and a silently communicated 

rejection of settlement overtures—necessarily expressed a message.5 In 

circumstances where a refusal to speak is inherently expressive, the reading 

of the statutory text adopted in Crossroads might be justified. But Tesla 

5 While this aspect of the step one anti-SLAPP analysis in the 

Crossroads opinion is somewhat opaque, the litigation privilege holding at 

step two of its analysis may shed some light on how the court viewed the 

issue of communicative conduct under section 425.16, subdivision (e)(1) and 

(2). It is often said that the existence of anti-SLAPP protected activity and 

the availability of the litigation privilege are related and the inquiry into one 

informs the other. (Navellier v. Sletten (2003) 106 Cal.App.4th 763, 770.) In 

the course of addressing whether Fannie Mae’s conduct was covered by the 

litigation privilege, the Crossroads court had to deal with the threshold 

requirement under Civil Code section 47, subdivision (b) that, for the 

privilege to apply, the conduct claimed to be privileged must be 

communicative. (Mancini & Associates v. Schwetz (2019) 39 Cal.App.5th 656, 

661; see Kimmel v. Goland (1990) 51 Cal.3d 202, 211.) The court found that 

Fannie Mae’s various omissions to speak were “in their essential nature, 

communicative.” (Kupiec v. American Internat. Adjustment Co. (1991) 

235 Cal.App.3d 1326, 1333.) And to illustrate the point, it cited authority for 

the concept of fraud by half-truth. (See Crossroads, supra, 13 Cal.App.5th at 

p. 786, citing Silberg v. Anderson (1990) 50 Cal.3d 205, 211, Kupiec v. 

American Internat. Adjustment Co., supra, 235 Cal.App.3d at p. 1333, and 

Forro Precision, Inc. v. International Business Machines Corp. (9th Cir. 1984) 

745 F.2d 1283, 1285.) 
11

makes no contention that it engaged in such conduct here. Whatever the 

basis of the Crossroads holding on this point, we hold that, absent inherently 

expressive silence, a refusal to speak is simply conduct, and under the section 

425.16, subdivision (e) schema, conduct is most naturally covered by 

subdivision (e)(4). 

Apparently recognizing this, as a secondary line of argument Tesla 

invokes section 425.16, subdivision (e)(4), the so-called “catchall” provision in 

the statutory scheme. (See FilmOn.com Inc. v. DoubleVerify Inc. (2019) 

7 Cal.5th 133, 148–152 (FilmOn).) Section 425.16, subdivision (e)(4), 

expressly covers “conduct,” not just “written or oral statement[s] or 

writing[s].” Applying that provision, the issue presented is whether Tesla’s 

conduct in refusing to comply with BSL’s statutory records requests was “in 

furtherance of the exercise of the constitutional right of petition or the 

constitutional right of free speech in connection with a public issue or an 

issue of public interest.” (§ 425.16, subd. (e)(4).) But Tesla fares no better 

with section 425.16, subdivision (e)(4) than it does with subdivision (e)(2). 

Under what has come to be known at the content-and-function test,

FilmOn supplies the applicable analysis. “The inquiry under the [section 

425.16, subdivision (e)(4)] catchall provision,” the FilmOn court explained, 

“calls for a two-part analysis rooted in the statute’s purpose and internal 

logic. First, we ask what ‘public issue or . . . issue of public interest’ the 

speech in question implicates—a question we answer by looking to the 

content of the speech. (§ 425.16, subd. (e)(4).) Second, we ask what 

functional relationship exists between the speech and the public conversation 

about some matter of public interest. It is at the latter stage that context 

proves useful.” (FilmOn, supra, 7 Cal.5th at pp. 149–150.) 

Geiser, our Supreme Court’s latest word on section 425.16, subdivision 

(e)(4), clarifies the test enunciated in FilmOn. (Geiser v. Kuhns (2022) 
12

13 Cal.5th 1238, 1248–1256 (Geiser).) The first step of the Geiser test “is 

satisfied so long as the challenged speech or conduct, considered in light of its 

context, may reasonably be understood to implicate a public issue, even if it 

also implicates a private dispute. Only when an expressive activity, viewed 

in context, cannot reasonably be understood as implicating a public issue 

does an anti-SLAPP motion fail at FilmOn’s first step.” (Id. at pp. 1253–

1254.) While the proper application of the content-and-function test on this 

record is close and somewhat novel, we think plaintiffs have the better side of 

the argument. 

The two contending positions on this issue are starkly different, not 

surprisingly. According to plaintiffs, the discovery disputes in Vaughn

amount to nothing more than a private controversy featuring some routine 

squabbling among lawyers, with the substantive allegations of race 

discrimination in that case playing an incidental part in the background. 

(See Doe v. Ledor (2023) 97 Cal.App.5th 731 [letter to college admissions 

department sent by disgruntled friend of admitted student making 

disparaging statements about admittee’s character did not contribute to any 

public conversation about an issue of public interest].) Tesla, on the other 

hand, relies on its own public prominence, points to a few statements from 

BSL about how Tesla is a “half a trillion dollar company,” and emphasizes 

how the injunctive relief in Vaughn “would inure to the benefit of not only 

current Tesla employees, but to the benefit of their families and their 

communities, as well as to the benefit of future Tesla applicants and 

employees.” (See Vaughn v. Tesla, Inc., supra, 87 Cal.App.5th at p. 232

[relief sought in Vaughn qualifies as a public injunction and is therefore 

exempt from arbitration].) 

We do not wholly agree with either characterization. Plaintiffs’ effort 

to characterize the dispute in this case as purely a private matter is strangely 
13

divorced from the ongoing contest in Vaughn. We believe there is a public 

issue in play here, though plaintiffs do their best to avoid the subject: It is 

the core allegation in Vaughn that, for years, Tesla has been turning a blind 

eye to racial harassment of African-American employees at its Fremont 

plant. Tesla’s publicly reported narrative about these accusations is that, in 

reality, the pattern of harassment alleged in Vaughn consists of isolated, 

unintentional insensitivity by a few employees, and that complaints by any 

offended workers should have been resolved by private reconciliation.6 

But Tesla’s effort to show that it meets the content-and-function test is 

also unpersuasive. Its size and reputation, while a relevant factor, is 

irrelevant in and of itself absent a demonstrated connection between its 

petitioning activity and a public issue. The scope of the relief sought in 

Vaughn fails to supply such a connection since it is tenuously related, at best, 

to the parties’ quarrel over the production of employee files. As we read its 

opening brief, the closest Tesla comes to identifying a section 425.16, 

subdivision (e)(4) public issue is its narrow suggestion that the dispute over 

production of employee files “highlights that the law is unsettled regarding a 

party’s obligations” when faced with Labor Code information requests made 

in parallel with ongoing discovery in a related action. But that is a stretch. 

Interesting though this issue of discovery law may be to civil litigators and 

judges, it is too parochial to qualify as an “issue of public interest” under 

section 425.16, subdivision (e)(4). 

6 The Chief Executive of Tesla, Elon Musk, reportedly wrote an email to 

Tesla employees in May 2017 stating “[p]art of not being a huge jerk is 

considering how someone might feel who is part of [a] historically less 

represented group . . . Sometimes these things happen unintentionally, in 

which case you should apologize. In fairness, if someone is a jerk to you, but 

sincerely apologizes, it is important to be thick-skinned and accept that 

apology.” 
14

Ironically, in straining to identify a public issue, Tesla seems just as 

allergic to the actual public controversy lurking in the background here as 

the plaintiffs are. Despite the elephant in the room—the allegations of 

racism leveled against it—we see nothing on this record to show how Tesla’s 

act of refusing to produce the personnel files plaintiffs demanded under the 

Labor Code could somehow constitute petitioning activity “contribut[ing]” to, 

“further[ing],” or “participat[ing] in” debate on the public issue being 

contested in Vaughn. (FilmOn, supra, 7 Cal.5th at pp. 151–154; Geiser, 

supra, 13 Cal.5th at pp. 1246, 1255.) In the end, that is the critical hurdle 

Tesla cannot overcome at step one of the anti-SLAPP analysis. 

Tesla’s refusal respond to plaintiffs’ Labor Code requests for personnel 

files does not qualify as petitioning activity protected by section 425.16, 

subdivision (e)(4) simply because of the pendency of hotly contested litigation 

on a public issue in a related case. The plaintiffs did not lose their rights to 

demand information the Labor Code entitles them to receive simply because 

BSL drew up a plaintiff class that includes them. (Wilder v. Superior Court

(1998) 66 Cal.App.4th 77 (Wilder) [plaintiff seeking to obtain investigation 

information in support of claim against public agency entitled to pursue 

statutory public records request independent of discovery process in litigation 

of her claim].) BSL’s Labor Code requests sought wage statements, 

attendance records, and an array of other quotidian information typically 

found in employee files. Although some of the Labor Code requests sought 

evidence relating to racial harassment complaints—which is no doubt why 

the background allegations in the PAGA complaint reference these 

complaints—the requests, in their full scope, sought a far broader universe of 

information than did the harassment-focused discovery Tesla faced in 

Vaughn. 
15

Tesla never expressly ties its argument that plaintiffs’ Labor Code 

personnel file requests were made “in Vaughn”—which is a running theme 

throughout its briefs—to its claim of section 425.16, subdivision (e)(4) 

protection. But we gather it places so much weight on the made “in Vaughn” 

theme because it wants us to conclude that refusing to respond to plaintiffs’ 

statutory information requests was, as a practical matter, petitioning activity 

undertaken in support of its defense of the Vaughn case. On this record, 

based on the arguments Tesla made in the trial court, as reiterated here on 

appeal, we see no basis to do so. The connection between Tesla’s refusal to 

respond to plaintiffs’ statutory information requests and the public issue 

being litigated in the Vaughn case is too attenuated to trigger section 425.16 

subdivision (e)(4) protection under the second step of the FilmOn-Geiser test, 

despite the subject matter overlap between those information requests and 

the allegations in Vaughn. 

No doubt because of that overlap, the Vaughn parties and the Vaughn

court appear to have tried to coordinate the pre-certification class discovery 

process with the statutory information requests the plaintiffs were 

simultaneously making under the Labor Code. But that does not mean these 

information requests were made “in Vaughn.” “It may well have been the 

case,” as the Wilder court stated, “that the documents . . . requested” by the 

appellant there would be used “to ascertain whether grounds for . . . a claim 

or lawsuit existed” (Wilder, supra, 66 Cal.App.4th at p. 83), but she was still 

entitled to obtain the documents by independent statutory authority. The 

same is true here. Regardless of their status as putative unnamed class 

members, plaintiffs were entitled to seek whatever information the Labor 

Code authorized them to seek, unconstrained by the strictures of the Vaughn

discovery process. 
16

The trial court recognized this, correctly citing Wilder at one point to 

indicate it had no authority to supervise plaintiffs’ Labor Code information 

requests as part its management of pre-certification discovery in the Vaughn

proceedings. To the extent these information requests added to the discovery 

burden on Tesla at that stage of the Vaughn case, Tesla’s obligation to 

respond was nothing more than a byproduct of the legislative authorization 

permitting every employee in the state to make demands for employment 

information from current or former employers, subject only to the exemptions 

written into the statutes authorizing such demands. None of these 

exemptions applies here.7 

7 The only such exemption Tesla cited below, an exemption it relies on 

here as well, provides that the right to inspect and receive copies of personnel 

files pursuant to a Labor Code section 1198.5 request “ceases” during the 

pendency of employment litigation filed by the requesting employee against 

the employer. (Lab. Code, § 1198.5, subd. (n).) Tesla’s reliance on this 

exemption rests on the premise that the Vaughn case is a lawsuit plaintiffs 

filed against Tesla. That premise is incorrect. As absent class members, they 

have no control over the Vaughn action, and never did—before or after it was 

filed. As a general matter, “ ‘a nonnamed class member . . . “is [not] a party 

to the class-action litigation before the class is certified” . . . . [Citation.]’ ” 

(Bowser v. Ford Motor Co. (2022) 78 Cal.App.5th 587, 618, italics omitted; see 

Smith v. Bayer Corp. (2011) 564 U.S. 299, 312–318.) Relying on an exception 

to this general rule, Tesla argues that “unnamed class members are ‘parties’ 

for purposes of discovery” in pre-certification class actions. (National Solar 

Equipment Owners’ Assn. v. Grumman Corp. (1991) 235 Cal.App.3d 1273, 

1281–1282 (National Solar); see Southern California Edison Co. v. Superior 

Court (1972) 7 Cal.3d 832, 840.) But the Edison/National Solar line of cases 

addresses the availability of party discovery tools to defendants seeking to 

compel information from unnamed class members. The rule these cases 

enunciate—which permits circumscribed party discovery against absent class 

members in some circumstances (see Danzig v. Superior Court (1978) 87 

Cal.App.3d 604, 612)—sheds no light on the issue presented here. Certainly, 

they do not stand for the broad proposition that absent class members may 

always be treated as parties for all purposes. 
17

The bottom line, as we see it, is this. Faced with many requests for 

information that had nothing to do with the allegations in Vaughn, Tesla 

made no effort to produce anything. This suggests it viewed the Vaughn case 

as a convenient excuse to relieve itself of the burden of meeting statutory 

obligations that were independent of its Vaughn defense. While the position 

Tesla took in response to these requests incidentally closed the door to 

plaintiffs’ ability to gather evidence supporting their allegations in Vaughn, 

that did not transform the plaintiffs’ demands for personnel files under the 

Labor Code—or Tesla’s response to those demands—into petitioning activity 

“in Vaughn.” 

Accordingly, because the PAGA case does not rest on any “written or 

oral statement[s] or writing[s],” section 425.16, subdivision (e)(2) does not 

apply and the Crossroads case—which was decided under subdivisions (e)(1) 

and (e)(2)—is inapposite. Nor is there any merit to Tesla’s narrowly 

articulated backup argument under section 425.16, subdivision (e)(4). 

Because Tesla fails to identify anything in the PAGA case that implicates 

speech or petitioning activity undertaken in connection with a public issue 

under the FilmOn-Geiser test, section 425.16, subdivision (e)(4) does not 

apply either. And in the absence of any protected conduct at step one of the 

anti-SLAPP analysis, we need not address whether the PAGA case lacks 

minimal merit. The merits of the PAGA case must be addressed in the usual 

fashion, by dispositive motion or trial. 
18

III.

The trial court’s order denying Tesla’s anti-SLAPP motion is affirmed. 

Costs on appeal shall be awarded to respondents. 

STREETER, J. 

WE CONCUR:

BROWN, P. J.

HITE, J.*

* Judge of the Superior Court of California, City and County of San 

Francisco, assigned by the Chief Justice pursuant to article VI, section 6 of 

the California Constitution.
Taylor v. Tesla – A168333

Trial Court: Superior Court of California, County of Alameda 

Trial Judge: Hon. Julia Spain 

Counsel: Reed Smith, Raymond A. Cardozo; Holland & Knight, 

Christina T. Tellado for Defendant and Appellant. 

Nichols Kaster, Matthew C. Helland and Jasjit Mundh; 

California Civil Rights Law Group, Lawrence Organ; 

Bryan Schwartz Law and Bryan Schwartz for Plaintiffs 

and Respondents.