Important: This page was con­vert­ed from the actual Court PDF using OCR. So there may be errors. To read the actual Court PDF, use the fol­low­ing link:

https://abuseofprocess.net/21CV004608-memo.pdf

This is a partial set. Points of lower importance are omitted. To see the whole thing, use the PDF link provided above.

* Allegation that a TV P.I. is dangerous:

Petitioner asserts that a TV P.I. can “reasonably” be be­lieved to be “dangerous” due to being in­volved with TV. The al­le­ga­tion isn't sup­port­a­ble. Directors and actors are not their characters.

* “Cyberattacks”:

Petitioner uses the word “cyberattack” in mul­ti­ple places with­out ever citing an example of a “cyberattack”. The implied al­le­ga­tions are con­clus­ory and prima facie false.

The prima facie part is that Petitioner has char­ac­ter­ized passive web­sites and email as “cyberattacks”. Neither is a “cyberattack”, in any formal or legal sense, unless malware is in­volved. A “cyberattack” is spec­i­fic­al­ly a soft­ware and/or illegal access attack such as DDoS — Distributed Denial of Service — or breaking into a bank account.

As a re­la­ted note, Re­spon­dent believes that Petitioner hired parties in Jan­uary 2022 to con­duct the latter type of “cyberattack” on him. Specifically, those parties accessed his financial records, the intent being to determine his physical loc­a­tion at the time. Re­spon­dent spoke by phone with one of the peo­ple involved and may or may not be able to identify them in due course.

* Alleged focus on race:

Petitioner claims that in the public-in­ter­est websites that Re­spon­dent post­ed as well as re­la­ted emails, “there is a focus on highlighting minority individuals and pressing on their race inappropriately”.

Petitioner is referring here to Respondent's public sup­port of a minority-race ex-em­ploy­ee of Fremont-Toyota, Sam Pawar, who had been tar­get­ed by the deal­er­ship for har­ass­ment due to his concerns re­la­ted to deceptive bus­i­ness practices and outright loan fraud at Fremont- Toyota as well as his race and religion.

The Fremont-Toyota core group repeatedly made statements of the fol­low­ing type to Mr. Pawar:

“Mother-f*cker you can't call us brother be­cause you aren't Muslim”. When he expressed concerns re­la­ted to deceptive bus­i­ness practices, his earnings were confiscated and he was told, “complain to your Hindu god also and no one will help you”.

Respondent's documentation of such be­ha­vior by Fremont-Toyota employees is the primary jus­ti­fi­ca­tion that Petitioner is attempting to use for the current cases.

The so-called “focus on highlighting minority individuals” has to do with the fact that the employees who engaged in hate speech hap­pen­ed to be Muslims. In fact, no minority has the right to engage in hate speech and ethnic har­ass­ment and to use the fact that it's a minority to justify such con­duct. In short, Indians and other races have the same rights that Muslims do.

Emphasis on the last sentence above, the one about same rights, add­ed.

* Snail-mail:

Petitioner cites snail-mail in mul­ti­ple allegations against Re­spon­dent. In fact, Re­spon­dent never sent any snail-mail in the current matter to anybody. All snail-mail al­le­ga­tions are false.

* Timing of snail-mail:

Petitioner states that “Mr. Hashimi re­ceived [snail-mail] shortly after his wife contacted the police inquiring about a restraining order against Mr. Martin and Re­spon­dent. The timing is sus­pi­cious, as if Mr. Martin and Re­spon­dent wanted to reinforce to Mr. Hashimi and his family that they do in fact know where he and his family live.”

Re­spon­dent reiterates that he never sent snail-mail to anybody in­volved in the current matter. The al­le­ga­tion is both con­clus­ory and entirely false.

* Photographs in general:

The “pictures” that existed on the web­sites, not counting clip-art, are be­lieved to have consisted large­ly of a public profile photo of “Mark” Hashimi placed next to letters from him to make it easier to fol­low a dis­cus­sion related to loan fraud, (b) a public profile photo of Chris­tine Long on a public-in­ter­est website that dis­cus­sed abuse of pro­cess, and (c) photos taken by a whistle-blower ex-em­ploy­ee named Sam Pawar of badges of Fremont-Toyota employees that were be­lieved to be in the public record, those photos intended to make it easier to organize the loan-fraud whistle-blower story that Mr. Pawar had start­ed to tell.

As a re­la­ted note, in the loan-fraud email exchange that was post­ed, a photo of Brian Martin was placed next to letters from him as well. The idea was to emulate Twitter so that peo­ple would be able to tell Mr. Martin's and Mr. Hashimi's letters apart easily.

* Personal con­tact information:

Petitioner implies repeatedly that a street address hit list was post­ed of Fremont-Toyota employees. No such list ever existed. The al­le­ga­tion is false.

In mid-2021, a summary of Mr. Martin's story was sent to man­a­gers who were be­lieved to be ap­pro­priate contacts at the deal­er­ship. This was by email and/or snail-mail. In some cases, peo­ple who were be­lieved to be able to for­ward the let­ter to the man­a­gers received it as well.

The “personal con­tact information” that appear­ed publicly was large­ly a Cc list in the PDF version of that let­ter.

One purpose for the Cc list was sim­ply to pro­vide Brian Martin, who handled the snail-mail part, with the snail-mail addresses to use. Another purpose was to inform the man­a­gers of who had been contacted so that they'd know who had been contacted and could dis­cuss who among them who should take responsibility for the loan-fraud issue.

“Mark” Hashimi aka Kamal Sayed Hashimi was an exception to the preceding. His loc­a­tion was sought for reasons re­la­ted to Court juris­dic­tion over planned lit­i­ga­tion in the public in­ter­est against Mr. Hashimi and/or Fremont-Toyota. As part of the pro­cess of establishing juris­dic­tion, one pos­si­ble residence address for Mr. Hashimi may have been post­ed in 2021. However, Re­spon­dent hasn't been able to confirm that a posting in that context existed.

The same pos­si­ble address appear­ed in a let­ter that was sent to Mr. Hashimi and Petitioner in mid-Jan­uary 2022 for reasons that were ex­plain­ed in the let­ter; including, in particular, the point that the addresses were pub­lic­ly available in Google, and Re­spon­dent was en­ti­tled both to seek and to disclose the address for le­gi­ti­mate and reason­able purposes that served the public in­ter­est.

Petitioner falsely cites street and/or email addresses that appear­ed in non-public research email as having been post­ed on web­sites. Examples include some of the addresses re­la­ted to the Kha­ch­a­tur­ian Foundation, a Cal­i­for­nia Foundation con­nec­ted to Fremont-Toyota by way of the Khachaturians who are be­lieved to have owned and/or controlled the deal­er­ship for years.

Re­spon­dent presently recalls only a single case where con­tact in­for­ma­tion for a Fremont-Toyota em­ploy­ee was knowingly post­ed on an explicitly designated con­tact page, the em­ploy­ee being Naqib Halimi, and that in­for­ma­tion was lim­it­ed to email addresses.

Mr. Halimi was a mana­ger, spec­i­fic­al­ly, a Finance Manager. The goal of the designated con­tact page was to assemble con­tact information for man­a­gers, to be lim­it­ed to email addresses except in ap­pro­priate contexts, exactly as any web­site engages in analysis of a company might include. However, the con­tact page was never completed and so Mr. Halimi re­main­ed the only entry.

The preceding is in reference to Fremont-Toyota. To avoid mis­under­stand­ings, there is a sep­ar­ate Ally Financial con­tact page that lists email addresses re­la­ted to that firm.

* Alleged “harassing” emails had a le­gi­ti­mate business purpose:

The so-called “harassing” emails in the current cases were sent for the most part (a) to request a for­ward of a single docu­ment to parties who had initiated abusive legal proceedings against a whistle-blower (b) to request in­for­ma­tion or perspectives re­la­ted to loan fraud and/or other crimes against the public from peo­ple who wished to communicate (c) and to request that attorneys in a law office, Berliner-Cohen San Jose, respond to reason­able questions re­la­ted to the organ­i­za­tion of the law office.

The organ­i­za­tion of the law office was of in­ter­est in con­nec­tion with the ques­tion of whether or not abuse of pro­cess to protect an organized-crime group had been approved by anybody in the law office other than Chris­tine Long. The answer was intended to shape steps at the State Bar level that were to be taken in the public in­ter­est.

* Use of the phrase “organized crime”:

Petitioner cites Respondent's use of the term “organized crime” as objec­tion­a­ble. Re­spon­dent asserts based on his years of work in fraud detection for cor­por­a­tions and his 44 years of pro­fes­sion­al experience with data in general that he believes the term “organized crime” to be accurate.

Petitioner also claims that Re­spon­dent used the term “crime ring”. Re­spon­dent doesn't be­lieve that he ever did so. A “crime ring” would be dif­fer­ent.

* Alleged publication of “home addresses”:

Petitioner states that Re­spon­dent published, i.e., post­ed, “home addresses” for Fremont-Toyota employees. In fact, Re­spon­dent isn't aware that any of the web­sites ever contained “home addresses” for any Fremont-Toyota employees other than Kamal Sayed Hashimi — in le­gi­ti­mate and reason­able contexts — plus a group of man­a­gers and/or senior-ranked peo­ple in the mid-2021 Cc list that was previously dis­cus­sed.

Petitioner has falsely cited street addresses for some parties that appear­ed only in research email having been post­ed publicly.

* Validity of fraud al­le­ga­tions against Fremont-Toyota:

Petitioner repeatedly cites an investigation by Ally Financial that Petitioner asserts proves no wrong-do­ing by Fremont-Toyota occur­red and that the actions of all three of the whistle-blowers in­volved were motivated by ethnic hatred.

The claim that Ally Financials investigation can be used to dismiss al­le­ga­tions of fraud is false on its face. Ally Financial sim­ply concluded there was not enough evi­dence of sus­pi­cious activity at that time to continue with their lim­it­ed investigation. Re­spon­dent, how­ever, did not rely solely on the Brian Martin fraud al­le­ga­tion against Fremont-Toyota alone. In fact, Re­spon­dent relied on statements and/or tangible evi­dence provided by three dif­fer­ent and initially unre­la­ted people: Brian Martin, Sam Pawar, and Sandra Melendez.

Martin's case, when combined with the al­le­ga­tions of Sandra Melendez, and Sam Pawar, convinced Re­spon­dent persuasive evi­dence of systemic loan fraud existed despite the speculative conclusion of Ally Financial. Text messages and emails from the aforementioned parties were reviewed by Re­spon­dent prior to his publication of any web­sites, or dissemination of correspondence to Fremont-Toyota employees.

* Court Orders:

Petitioner states: “[Respondent] boasts that 'OldCoder has never done an involuntary takedown. He's also fine with the idea of discussing threats of abuse of pro­cess with the State Bar.'” Petitioner positions the lack of takedown Orders and — somehow, a reference to the State Bar — as evi­dence that Re­spon­dent has defied Court Orders in the past: “It is clear from the above that Re­spon­dent does not intend to comply with any orders of the court to remove these websites”.

The claim goes beyond con­clus­ory to falsehood. Regarding “more copies of the web­sites out there” this is primarily a reference to Streisand Effect.

Streisand Effect is the situation where a take-down law­suit that is against the public in­ter­est has the opposite of the intended effect. The content in such cases goes “viral” and is mirrored by thousands of peo­ple. The most recent well-known example is the failed take-down of FOSS [Free and Open Source Software] named “youtube-dl”. A Google search for “youtube-dl takedown” will explain.

The Streisand Effect is named after a legal case where singer Barbra Streisand sought to take-down a photo that the Cal­i­for­nia Coastal Records Project had taken of her residence in Malibu, Cal­i­for­nia. Prior to the take-down attempt, only 6 copies of the photo had been down­load­ed. Subsequent to the story going viral, millions of copies of the photo circulated.

Respondent's mention of Streisand Effect is a sim­ply technical point re­la­ted to the natural con­se­quen­ces of lit­i­ga­tion that is against the public in­ter­est. He has no special ability himself to induce Streisand Effect. It's sim­ply something that happens.

Regarding “turn control [over] to third parties”, Petitioner is unfamiliar with how the Web works.

Re­spon­dent placed his public-in­ter­est anti-fraud web­sites in Creative Commons at the start. As a re­la­ted legal point, Creative Commons can't be retracted. The attorney who created Creative Commons, Lawrence Lessig, made sure of this. One natural con­se­quen­ce is that third-party copies can't be taken down with­out legal actions that are independent of initial SLAPPs.

Mr. Lessig was the Professor of Law at Stanford who argued the Mickey Mouse Copyright Extension case be­fore the Supreme Court circa 2003. He lost the case but founded Creative Commons as a re­sponse to corporate overreach in the matter.

The most important features of Creative Commons include the point men­tion­ed above — full take downs by abusive SLAPP are not legal­ly practical — and the fact that inclusion in Creative Commons leads to copies independently of Streisand Effect.

For a decade, Re­spon­dent has placed much of his content in Creative Commons. He has observed the preceding to be the case. Re­spon­dent pre­sent­ly uses Creative Commons CC BY-NC-SA 4.0 International and simi­lar licenses. The legal language for the specific example cited may be viewed online at:

https://creativecommons.org/licenses/by-ne-sa/4.0/legalcode

Re­spon­dent made his public-in­ter­est anti-fraud web­sites mirror-friendly as well; this is a tech­ni­cal term. And he put the web­sites at the top of sever­al search engines. These were all le­gi­ti­mate and steps to take for public-in­ter­est anti-fraud web­sites.

It adds up to the fact that copies of the sites are out there as things stand. Petitioner is referring to active transfer. Active transfer is some­thing that peo­ple do but the step isn't required. Internet Archive creates mirrors for millions of public-in­ter­est sites with­out permission or dis­cus­sion. Respondent's primary public-in­ter­est web­site is at Internet Archive and in lesser-known but simi­lar projects in Europe and other regions around the world already. Re­spon­dent didn't request this.

It should be noted that Re­spon­dent has no way to identify third-party copies unless Streisand Effect kicks in and no control over such copies regard­less. They'd sim­ply be out there.

Regarding Court Orders, Re­spon­dent has never knowingly violated a Court Order. He doesn't be­lieve that he has ever violated one unknowingly either.

* “Confusing” email addresses:

Petitioner claims that Re­spon­dent used email addresses that were “designed to confuse individuals and otherwise drive traffic from Fremont Toyota to Respondent's and Mr. Martin's vicious websites”.

The al­le­ga­tion related to “confuse” is con­clus­ory and false. In fact, Re­spon­dent took care, in most cases, to use usernames that clearly identified email as being sent in a “Review” context. For example: Fremont-Toyota Review.

The point about “drive traffic” is incorrect in the sense that Petitioner means. Re­spon­dent has some experience with SEO [Search Engine Optimization]. Re­spon­dent chose domain names that would, in the public] in­ter­est, take traffic from sites as­soc­i­a­ted with a company that com­mit­ted fraud on a systemic basis and build traffic to sites that documented the fraud.

The email addresses used the same domains be­cause that is how the FOSS soft­ware that Re­spon­dent used, Mail in a Box, works. Those who wish to confirm Respondent's claim may review the home page for the soft­ware at the fol­low­ing link:

https://mailinabox.email/

* Allegedly “false” and “defamatory” statements:

Petitioner cites quotes by Re­spon­dent that she asserts are “false” and “defamatory”. Re­spon­dent responds that, based on his years of work in fraud detection for cor­por­a­tions and 44 years of data experience in general, all statements of fact as opposed to opinions or metaphors are be­lieved to be accurate. This said Re­spon­dent included the fol­low­ing notice on the sites from the start:

“Statements are based on belief and best un­der­stand­ing of facts and are not necessarily statements of fact except where this is explicitly stated. People with knowledge of facts that may be rele­vant to content are invited to sug­gest corrections or additions.”

To the best of Respondent's knowledge, nobody ever attempted to offer a correction to any state­ment of fact on the sites.

Re­spon­dent believes that the sole purpose of the three actions that Petitioners have initiated against him is to take-down web­sites which pro­vide factually accurate evi­dence regarding a systemic fraud scheme by Fremont-Toyota. The takedowns are not in the public in­ter­est.

* Statements re­la­ted to criminal charges:

Petitioner cites statements re­la­ted to pos­si­ble criminal charges against Kamal Sayed Hashimi and others as objec­tion­a­ble.

“Mark” Hashimi was be­lieved to be, based on Respondent's years of work in fraud detection for cor­por­a­tions and 44 years of experience with data in general, the leader of a minor but well-funded organized crime group that didn't mind committing fraud against the public in an unexpectedly casual manner.

This, combined with remarks that Hashimi made to Martin, suggested that Hashimi was both confident and well-funded. The odds were high that he'd threaten or initiate abuse of pro­cess. This, as it turned out, is exactly what hap­pen­ed.

Respondent's comments were intended to caution Hashimi that abuse of pro­cess was in­ap­pro­pri­ate and inadvisable.

* Communication with Ms. Campos:

Petitioner asserts that com­mun­i­ca­tion that Re­spon­dent initiated with a woman named Kathryn Campos was in­ap­pro­pri­ate. Re­spon­dent notes, first, that neither Ms. Campos nor anybody else ever objected to or expressed concern re­la­ted the com­mun­i­ca­tion prior to lit­i­ga­tion. The com­mun­i­ca­tion was initiated for le­gi­ti­mate and reason­able purposes regard­less; most importantly, as a step towards lit­i­ga­tion against Hashimi.

In mid-2021, “Mark” Hashimi assumed initial responsibility for com­mun­i­ca­tions at Fremont-Toyota re­la­ted to the loan fraud that the deal­er­ship had com­mit­ted. The name Kamal Sayed Hashimi turned up in re­la­ted loan-fraud research. For pur­poses related to pos­si­ble lit­i­ga­tion as well as documentation, Re­spon­dent needed to confirm that the two men were, or were not, the same per­son and identify the Court that would have juris­dic­tion when he was sued.

A woman named Kathryn Campos had initiated divorce proceedings against “Mark” and/or Kamal Sayed Hashimi in the 2000s. The divorce seemed to have been called off. Hashimi's loc­a­tion thereafter was unknown. It was ap­pro­priate to ask Ms. Campos if she was able to com­ment on who and where Hashimi was. Ms. Campos never com­mun­i­ca­ted to Re­spon­dent prior to lit­i­ga­tion that the inquiry was unwelcome.

Petitioner states that Re­spon­dent invited “Ms. Campos to join efforts to es­sen­tial­ly take-down Mr. Hashimi”. The word “take-down” is intended by Petitioner to convey a tone of physical violence. In fact, the only “take-down” was to be lit­i­ga­tion in the public in­ter­est against “Mark” Hashimi and/or Fremont-Toyota as an organ­i­za­tion.

Regarding the fact that Ms. Campos's address was men­tion­ed, the point wasn't that it might be her address. The point was the ques­tion of whether or not it was the current or only the past address of her husband or ex-husband and, if he was not there, once again, which Court would have juris­dic­tion when he was sued.

Regarding the al­le­ga­tion Petitioner makes in mul­ti­ple places that “illegal means” were used to “obtain information”, the al­le­ga­tion is false. In the Hashimi context, Hashimi himself voluntarily provided a personal phone num­ber to Martin. The phone num­ber made it pos­si­ble to confirm that “Mark” and Kamal Sayed was the same per­son.

* DMCA issue:

Petitioner cites a state­ment by Re­spon­dent to Berliner-Cohen where he stated “don't even think about” DMCA as objec­tion­a­ble. The DMCA point was intended to preempt abuse of pro­cess by Fremont-Toyota. Any attempt to do this through the implied suggestion that the com­plaint will fail in Court is neither an in­ap­pro­pri­ate threat nor har­ass­ment.

* Alleged de­fa­ma­tion of Kha­ch­a­tur­ian Foundation in particular:

Petitioner asserts that Re­spon­dent has defamed the Kha­ch­a­tur­ian Foundation. In fact, Re­spon­dent attempted to initiate non-public com­mun­i­ca­tions with and/or regarding the Foundation for the le­gi­ti­mate and reason­able purpose of assessing its position on the loan fraud that its key figures were be­lieved to be in­volved in dir­ect­ly or indirectly.

Re­spon­dent adds that, based on his 44 years of pro­fes­sion­al experience work­ing on data projects for UK-NCIS, the DTIC, the CIA, the military, and other entities as well as years of experience in fraud detection for two cor­por­a­tions, his al­le­ga­tion that “the Kha­ch­a­tur­ian Foundation is funded in part by the proceeds off pro­se­cu­table crimes” is be­lieved to be correct.

The ques­tion of which of the individuals who con­nec­ted Fremont-Toyota to Kha­ch­a­tur­ian Foundation were aware of the fraud is sep­ar­ate. Re­spon­dent intended to finalize a position subsequent to consensual com­mun­i­ca­tion with those who wished to dis­cuss the matter.

* Race of one attorney:

Petitioner states: “Berliner Cohen has 65+ attorneys and the current managing partner is white. Yet, Re­spon­dent specifically selected a non-white attorney to threaten the firm”. This al­le­ga­tion is devoid of merit unless there exists only one minority attorney at Berliner Cohen.