[conspire] (forw) Tesla lawsuit

Sun May 10 21:47:32 PDT 2020

----- Forwarded message from Laurie Forbes <laforbes at telus.net> -----

Date: Sun, 10 May 2020 10:09:30 -0600
From: Laurie Forbes <laforbes at telus.net>
To: Skeptic <skeptic at linuxmafia.com>
Subject: [skeptic] Elon Musk - Crackpot?

Seems to be headed that direction:

https://www.rawstory.com/2020/05/billionaire-elon-musk-threatens-removing-tesla-from-california-over-fascist-coronavirus-restrictions/

And this in particular:

https://www.cnn.com/2020/05/08/entertainment/elon-musk-grimes-baby-name-pronunciation-scli-intl/index.html

----- End forwarded message -----
----- Forwarded message from Rick Moen <rick at linuxmafia.com> -----

Date: Sun, 10 May 2020 12:38:48 -0700
From: Rick Moen <rick at linuxmafia.com>
To: skeptic at linuxmafia.com
Subject: Re: [skeptic] Elon Musk - Crackpot?

Quoting Laurie Forbes (laforbes at telus.net):

> Seems to be headed that direction:
> 
> https://www.rawstory.com/2020/05/billionaire-elon-musk-threatens-removing-tesla-from-california-over-fascist-coronavirus-restrictions/
>
> And this in particular:
> 
> https://www.cnn.com/2020/05/08/entertainment/elon-musk-grimes-baby-name-pronunciation-scli-intl/index.html

Following the 'I'll hold my breath and leave and go to Nevada/Texas'
tantrum, Musk had Tesla file litigation in Federal District Court for
Northern California against Alameda County (where the Tesla plant[1] is
in Fremont, CA) seeking temporary and permanent injunctions against the
county shutdown orders.  It's such a brand-new filing I'm still trying
to find the text, but some news outlets have partial summaries, e.g.:
https://www.marketwatch.com/story/tesla-sues-fremont-factorys-county-seeking-to-reopen-plant-2020-05-09?mod=article_inline

OK, Deirdre just used her Federal court login to snag me a copy.
http://linuxmafia.com/~rick/tesla-v-alameda_co_complaint.pdf

As a reminder, lawsuit complaints deliberately tell a one-sided story
that is often hilariously far from the facts likely to be established in
court, and will often take strained legal positions.  There is no cost
to being outrageous, here.

Claims are:

Claim 1.  Alameda County's mandated closure was an unlawful taking of
liberty and property under the 14th Amendment's Due Process Clause.
Tesla claims the regulation fails caselaw standards by being vague and
failing to give fair notice or lacking in standards, thus inviting
arbitrary enforcement.

The claim elaborates that one of the county orders ('Third County
Order') is in violation of that fair notice standard because it differs
from Gov. Newsom's statewide order.  They also claim this order was
vague because it spoke of criminal penalties even though the state
statutes cited in the order don't carry criminal penalties.  They also
claim it was vague because the order contradicted some wording in the
county's other substantive guidance, e.g., its shelter-in-place FAQ.
And they claim it's a Due Process violation for the order to omit
procedures to challenge a county's determination of a business being
non-essential.

Claim 2.  Alameda County's mandated closure also violates the 14th
Amendment's Equal Protection Clause by failing to state a rational basis
for the determination that Tesla's plant operation was non-essential.
They point to San Joaquin County _not_ having ordered closed Tesla's
plant in that county, and conclude that the 'disparate treatment' means
there's no rational basis for the two counties differing.  Along the
way, this claim asserts that Alameda County's shelter-in-place FAQ
declares essential any business that manufacture the products Tesla
manufactures, ergo again lack of rational basis.

Claim 3.  Alameda County's mandated closure violates pre-emption doctrine
because local health authorities' actions are supposed to be controlled
and regulated by the state Health Department, and under the Governor's
emergency authority.  This claim says Alameda County went off the
reservation in this respect, because the Governor's order classifies
Tesla's industry segment as critical infrastructure that must be deemed
'essential'.  

Based on those claims, Tesla requests permanent injunction plus
declaratory judgement that the order violated 14th Amendment Due Process,
plus declaratory judgement that the order is void because of what Tesla
claims about the Governor's order.

Let's quickly tally up some of the flummery being pulled, here:

All the business of the order being violative of California Health
Department and the Governor's authority is bullhockey for at least two
reasons.  One, both CHD and Gov. Newsom have been clear from the
beginning, orally and in writing, that counties and cities are free
to impose local regulations stricter than the statewide ones, and the
notion that Gov. Newsom had classified manufacturing Tesla cars as
critical infrastructure is extremely doubtful.  

Alameda County's orders are the same as the orders issued by the other
five Bay Area counties, and they weren't even a tiny bit vague.  The
violation of criminal law entailed in violating Health and Safety Code
section 120295 has been consistently clear and understood in the 
counties' materials on the subject:  Conviction incurs a fine of between 
$50 and $1000, or a term in jail of no more than 90 days, or both.  
Each day of violation counts as a separate offence.
https://leginfo.legislature.ca.gov/faces/codes_displayText.xhtml?lawCode=HSC&division=105.&title=&part=1.&chapter=4.&article=
Claiming they were somehow unclear on this is just tactical stupidity
(http://linuxmafia.com/~rick/lexicon.html#tactical-stupidity).

In fact, Tesla was a notorious scofflaw in the first week or so of the
county and state orders, and the plant's standoff with the county
almost came down to sheriffs entering to escort people out.  The notion
that they were confused about the criminal penalties is wacky.

The notion that two counties issuing slightly different shutdown orders 
establishes lack of a rational basis for one county's order is...
creative, but not actually the law.

And no, Alameda County's shelter-in-place FAQ doesn't declare the
manufacturing of electric cars to be essential, either.  The FAQ
talked about businesses that 'installs distributed solar, storage,
and/or electric vehicle charging systems'.  Sorry, Mr. Musk.  A Tesla 
Model 3 isn't one of those things.

Disclaimer:  I didn't have time to do serious analysis of the court
filing.  Above is just based on a very quick pass.

Anyway, yeah, Musk has always been a classic whiny little bitch.  Don't
forget about the libellous tweet where he distinctly implied that one of
the divers rescuing the boys from that flooded cave in Thailand was a
child molester, just because the diver had critiqued Musk's wacky ideas
for how to get the kids out.

[1] This huge building is the former NUMMI plant, then operated by New
United Motor Manufacturing, Inc, a joint venture Toyota and GM co-owned
from 1984 to 2010.  https://en.wikipedia.org/wiki/NUMMI 

----- End forwarded message -----
----- Forwarded message from Scott White <scottwhitehome at gmail.com> -----

Date: Sun, 10 May 2020 21:15:54 -0700
From: Scott White <scottwhitehome at gmail.com>
To: Skeptic <skeptic at linuxmafia.com>
Subject: Re: [skeptic] Elon Musk - Crackpot?

On Sun, May 10, 2020 at 12:39 PM Rick Moen <rick at linuxmafia.com>
wrote:

> Following the 'I'll hold my breath and leave and go to Nevada/Texas'
> tantrum, Musk had Tesla file litigation in Federal District Court for
> Northern California against Alameda County (where the Tesla plant[1]
> is in Fremont, CA) seeking temporary and permanent injunctions against
> the county shutdown orders.
[snippage]
> Anyway, yeah, Musk has always been a classic whiny little [whiner]

Here's something I received from a law firm that feels the need to
keep me up to date on its wisdom.
https://briscoelaw.net/government-covid-19-limiting-your-movements/

----- End forwarded message -----
----- Forwarded message from Rick Moen <rick at linuxmafia.com> -----

Date: Sun, 10 May 2020 21:34:22 -0700
From: Rick Moen <rick at linuxmafia.com>
To: Skeptic <skeptic at linuxmafia.com>
Subject: Re: [skeptic] Elon Musk - Crackpot?

Quoting Scott White (scottwhitehome at gmail.com):

> Here's something I received from a law firm that feels the need to keep me
> up to date on its wisdom.
> https://briscoelaw.net/government-covid-19-limiting-your-movements/

According to my understanding of the law and the news, this is dead on
the money.  (Since the piece's publication, San Mateo County revised its
shelter-in-place order to encourage outdoor recreation up to ten miles
from one's residence rather than five.  The rest remains fully accurate.)

--
Cheers,                          Date: "What do you do?"
Rick Moen                        Me: *holds up menu* "You just choose a meal
rick at linuxmafia.com              from this book of food."
McQ! (4x80)                                 -- Matt Watson (@biorhythmist)

----- End forwarded message -----