Superior Court of California County of San Mateo

Criminal Division 400 County Ce~t~r, 4th Floor

Redwood City, CA 94063 (650) 363-4302

www.sanmateocourt.org

INITIAL COMPLAINT

IN THE MATTER OF: People vs Michael Zeleny Michael Zeleny

Case: SM382036A July 19, 2012

7576 WILLOW GLEN RD Los Angeles, CA 90046

A complaint has been filed in this court charging you with a violation of section(s) (Seccion Violada):

1) PC 25400(A)(2)

You are directed that you must appear in this Court at the address indicated above on:

DATE (FECHA): 08/21/2012 TIME (HORA): 9:00 A.M.

Your failure to appear in Court on the date and time given you above will result in the issuance of a warrant for

Una acusacion formal a sido archivada en este tribunal acusandole de una violacion de la seccion(es) previamente mencionada.

Se Ie avisa que comparesca a responder en el asunto mencionado previamente en el juzgado indicado en la fecha y hora tambien indicada. Si usted no comparese en la fecha y hora indicada re' te resultara en una orden de arresto emitida contra usted.

By: Anthony Albar Deputy Court Clerk

CLERK'S CERTIFICATE OF MAILING

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-I hereby certify that I am not a party to this cause; that I served the foregoing Initial Complaint by placing a copy of the above Notice in separate sealed envelopes addressed respectively to the persons and addresses as shown in the foregoing Initial Complaint, and by placing the envelope for collection and mailing on the date indicated below at Redwood City, California, following standard court practices. On the same day that correspondence is placed for collection and mailing, fully pre-paid postage is affixe d is deposited in the United States mail at Redwood City, California, in the ordinary course 0

DATED: 07/19/12

FILE COPY

By: Anthony Albar Deputy Court Clerk

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Intel-Deparlmen la l Correspondence

DATE: October 7,2010

TO: Police Management Staff

FROM: Sharon Kaufman, Acting Commander, Patrol Operations

SUBJECT: NEA - Michael Zeleney and Stanford Properties -- ----

This memorandum is to serve as a training and informational document addressing the approach, handling and potential enforcement at NEA and/or Rosewood Hotel and/or surrounding propeliies at 2855 Sand Hill Rd.

In the last couple of days, meetings have taken place between the Chief and I with Stanford Eroperties, their attorneys and District Attomey's Steven Wagstaffe and Karen Guidotti. After consultation, legal representatives for the landlord have begun to craft a letter that will be used to inform Mr. Zeleney that his presence is not welcome onto the property, and if he refuses to leave, he will be subject to arrest for trespassing. An agent of Stanford Properties will be the ones to present the letter. They may ask us to serve as witness to the service which we can do, however, we will not serve as their agent if asked.

Action Steps:

Patrol Supervisors: Please review Penal Code section 602. I(a) as this is the basic premise of the letter that is being drafted by Stanford Properties and ultimately what we would cite/arrest Mr. Zeleney for. Additionally, if we do arrest Mr. Zeleney under the trespass section it is emparative to have a Sergeant on site and do the following:

I) Book into the county jail based on the "likelihood of reoccurrence" if we simply cite him 2) Take and book all items of evidence including his weapon and ammuni tion for the case, (make

sure he is give a property receipt). 3) Gather any and all statements of witnesses, whether they are employees, customers, guests,

vendors, etc". 4) Make sure that a citizen's an'est fonn is signed by an agent representing the landlord. 5) Assemble all cases written on the protestor and his activ ities the last few weeks along with NEA

submitted video and Menlo Park Police Department generated video.

Communications Supervisor: As restraining orders are kept in dispatch, we would also like to keep a copy of the letter that was served to Mr. Zeleney in a folder in dispatch so that it is easily accessible to officers and sergeants any day and time. We would also like to add notes into RIMS to flag both the properties and Mr. Zeleney as infonnational when calls come in. For example, under Mr. Zeleney's profile, note when he was served with the letter. Flag the properties to alert officers of previous trespass activity.

Records Supervisor: Make sure that all records personnel are aware of Mr. Zeleney and his activities at the locations.

If any of these action items cannot be done as a result of technilogical incapabilities, please let me know.

SAND HILL OFFICES - PRIVATE PROPERTY / NO TRESPASSING SIGN LOCATION

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From: larvatus@gmail.com To: policechief@menlopark.org ; grojas@menlopark.org ; wlm@jsmf.com ; slodge@santaclaraca.gov ; police@santaclaraca.gov ; Manager@santaclaraca.gov < Manager@santaclaraca.gov>; CityAttorney@santaclaraca.gov -Cc: Sent: Man Sep 20 03:09:37 2010 Subject: Resumption of Public Protests in Menlo Park and Santa Clara Dear city authorities of Menlo Park and Santa Clara, Please be advised that starting on 27 September 2010, my associates and I will resume open-ended peaceful public protests last held in 2009 in front of NEA, 2855 Sand Hill Road, Menlo Park, CA 94025 and Cisco/WebEx, 3979 Freedom Circle, Santa Clara, CA 95054. The purpose of our demonstrations will be to protest Subrah Iyar's employment by Cisco/WebEx, Scott Sandell's employment by NEA, and the association of these individuals and their employers with Min Zhu, as explained at http://www.subrah.com. My associates and I are pledged to abide by all applicable laws. We exercise our right to free expression on private property readily accessible to general public pursuant to the rulings in Pruneyard Shopping Center v. Robins, 447 U.S. 74 (1980) and progeny. We assert that the strip of private property directly in front of the main entrances to 2855 Sand Hill Road, Menlo Park, CA 94025 and the plaza in front of 3979 Freedom Circle, Santa Clara, CA 95054, both fall within the purview of Pruneyard in virtue of housing several unrelated businesses and being readily accessible to the general public. Additionally, owing to police and hotel management misconduct at our first public protest in San Francisco, and death threats received in the past and recently renewed in the matter at issue, we shall' exercise our right to bear arms pursuant to the Second Amendment of the U.S. Constitution and all applicable federal and state laws, by carrying exposed, unloaded firearms, legally owned by my associates and me in the state of California, accompanied by loaded magazines, oahdoleers;-a"na" ~fpe"edloaaefs~suDject to lhe"aefirliffonsof peoi:ire-"v.-ClBrf-(1996};-"4S-CaT."App.4fh 1147,53 Cal.Rptr. 2d 99. None of the firearms in .question will qualify as assault weapons under California law, as listed or described in Penal Code Sections 12276, 12276.1, and 12276.5. My associates and I agree to Section 12031 (e) inspections of our firearms on demand by police officers. Please note recent incorporation of the Second Amendment protection of the right to keep and bear arms as "fundamental" to the American scheme of ordered liberty, in McDonald v. Chicago, 561 U.S. _ (2010). We will not interfere in any unlawful way with the operation of NEA, Cisco/WebEx, or any of their employees, clients, associates, or visitors, including, but rl_ot limited t9, SLJQrCiO IYCir (iflQ ~c.ott Sandell. At the sarrre time,"we"shall vigorously" enforce our right to speak out against the knowing collusion of big business in your jurisdictions with a violent child rapist, and seek redress for air wrongs consequently visited upon us, by resisting in all lawful ways and publicly denouncing in all appropriate venues, any private or official attempt to interfere with our rights. Please take note of case law, beginning with Florida v. J.L., 529 U.S. 266 (2000), to the effect that detaining a man observed as openly carrying an unloaded firearm in public violates the Fourth Amendment. Please note further ACLU of Nevada v. City of Las Vegas (ACLU 11),466 F.3d 784, 790 (9th Cir. 2006) and progeny holding various local ordinances prohibiting street expression, solicitation, and entertainment, in violation of the First Amendment. Lastly, please be aware that litigation over infringement of fundamental Constitutional rights is subject to a mandatory award of attorneys' fees and court costs to the prevailing party intent on exercising them, typically in the amount of a multiple of the actual fees and costs. Our costs in mounting these events are considerable, and we shall seek court orders for their manifold reimbursement by any perpetrators of unlawful interference.

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We are pleased to point out that our prior events in San Diego, Milpitas, Menlo Park, and Santa Clara were unmarked by any disturbances. We hope that the same will be the case on this occasion of scaling up our activities within the bounds of legitimacy sanctioned by the authorities of the United States Court of Appeals for the Ninth Circuit and the United States Supreme Court. Owing to substantial gains in our quest for remedies against Min Zhu and his confederates, our protests shall henceforth include topical artistic performances by bagpipers, clowns, rappers, and a brass band. It is our position that these performances are protected under the First Amendment, and therefore are not subject to local permit requirements. However, as an accommodation provided in the spirit of courtesy, we shall abstain from erecting free-standing signs and using amplification equipment, and will consider requests for additional constraints on our performances on a case-by-case basis. Lastly, we continue to claim the right protected by the First Amendment, to hold press conferences at the site of our protests and to film all passerby there being questioned as to their opinion of big business knowingly getting in bed with a violent incestuous paedophile. We hope to forestall futile litigation bound to be costly and disappointing to your taxpayers by giving you this advance notice of our plan.

Concerned parties may address their communications to my lawyer David W. Affeld , Affeld Grivakes Zucker LLP, 12400 Wilshire Boulevard, Suite 1180, Los Angeles CA 90025, phone: (310) 979-8700, fax: (310) 979-8701. I may be reached at the number listed below.

Michael Zeleny@post.harvard.edu -- http://larvatus.livejournal.com/--7576 Willow Glen Road, Los Angeles, CA 90046 -- 323.363.1860 All of old. Nothing else ever. Ever tried. Ever failed. No matter. Try again. Fail again. Fail better. --Samuel Beckett

This electronic mail message, including any attachments hereto, is intended only for the addressee and may contain privileged and/or confidential information. If you are not the addressee indicated in this message (or responsible for delivery of the message to such person), you are. hereby notified that you must. not use, disseminate, copy it in any'form, or take any action based upon it. If you have received this message by error, please immediately delete it and any copies of it, including any attachments hereto, and notify the sender at New Enterprise Associates by reply electronic mail message, fax or phone. Thank you.

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IL/loJ ;;lIS::.' C(~cr2 Go.r~ (-. HOGAN LOVELLS US LLP H ( ) Robert B. Hawk (Cal. Bar No. 118054) ~ v f-)/ LI / !l4( I/) 0/ Kristi K. Elder (Cal. Bar No. 231996) t' "1 i:? '{ -- { C/ /0 Nimrod H. Aviad (Cal. B~ No. 259705)

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525 UniversitY Avenue, 4 Floor ~ Palo Alto, California 94301 z4~ /S~O '90\) _. ! () t) 17

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nimi.aviaa@heganlovells.com ({(){V, ~\o Cha(k:\W Attorneys for Plail1tiff

NEW ENTERPRISE ASSOCIA TBS, INC. ~ SUPERIOR COURT OF THE STATE OF CALIFORNIA

VcJ.1J1lii COUNTY OF SAN MATEO J! Vk,J ;/AlL

New Enterprise Associates, Inc., a Delaware Case No. 12 Corporation,

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Defendant.

MEMORANDU1v1 OF POINTS AND AUTHORITIES

MEMORANDUM OF POINTS AND AUTBORITlES IN SUPPORT OF NEW ENTERPRISE ASSOCIATES, INC.'S EX PARTE APPLICATION

- . FOR-TEMPORARY-RESTRAINING ORDER AND ORDER TO SHOW CAUSE RE PRELIMINARY INJUNCTION

Date: October S. 2010 Time: 2:00 p.m. Dept: 24, Courtroom 2C

Hen. Stephen M. Hall, Presiding Judge

ISO NEA'S EX. PA.RTE APPLIC. FOR TRO & ase RE PRELIM. INJUNCTION \\\OlISU60'OOOOQI STOoI'7 d

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T ABLE OF CONTENTS

Page

INTRODUCTION ............... " .............................................................................................. 1

STATEMENT OF FACTS .................................................................................................. 2

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B.

c.

D.

Ba.c.kground ... f ,. , ,. ,t I ,. ,,. I ," , ......... , .. r I., I I I ......... II. II II t "' t 1,2

2009 Trespass ......................... , .......................... " ., ................................................... 3

2010 Trespass ......... , ........................ , ................... " ................................................... 5

NEA's Efforts To Resolve The Issue Have Been Ineffective, and NEA Has Suffered And Will Continue To Suffer Irreparable Harm ....................................... 7

11 III. NEA IS ENTITLED TO A TRO AND A PRELIMINARY INJUNCTION ....................... 8

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B.

A TRO Is Necessary To Prevent Further Irreparable Harm to NEAt .... 11 ................ 9

NEA Has A Strong Case On The Merits And Will Likely Prevail On Its Trespass Claim .................. It ....... ................. 0 ......................................................... ,.9

-- 1. - ~ The elements of a trespass action are unambiguouslypresent here::.;~: .... ~.10

16 2. Zelenfs disingenuous invocation of Constitutional rights c;loes not --+--~-Hf------~--rt' :1St11' r:v-1-..!. 0 t' ..,.;...." \I! .

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neS C n lni:iiilg trespa5lS ........................ " ......................................... .

C. The Balance Of Hardships Favors Granting A Preliminary Injunction ................. 12 IV. CONCLUSION ........................................................................................... ~ ............ , ......... 13

'MEMORANDUM OF POINTS AND AurnORITIES ISO NEA'S EX PARTE APPLIC. FOR TRO & OSC RE PRELIM. IN.rmtCTION

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2 TABLE OF AUTHORITIES

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Allredv. Han-is, 14 Cal.App.4th 1386 (1993) ........................... , ............................ " ...................................... 8) 10

Allred v. Shawley, 232 Cal.App.3d 1489 (1991) ............................................................................. " .................... 11

Bank of Stockton v. Church of Soldiers, 44 Cal.App.4th 1623 (1996) ...................................................................... ..... i .................... 8, 12

Butf v. State of Cal. , 4 Cal.4t~ 668 (1992) .,. ................ 1 "., , " " " 12

Feminist Women's Health Center v. Blythe) 32 Cai.App.4tl11641 (1995) ............. , ................... , .................. ,', .... , ..... , . , ...... ,.,., ............ "" ........ 11

IT Corporation v. County of Imperial, 3S Cal.3d 63 (1983) ., .. , ..... " .. , ... , ........ " ...... 1, ' .............. '.'f"" ...... , , ... , ... , ,." ..... t 8

Planned Parenthood v. WUson, - 234 Ca1,App.~d 1662 (1991) ............... , ..... , .............. ".,., ............ f'."' .. " . '.tl' .. ~ , 11

Robins 'V. Pruneyard Shopping Center, 23 Cal.3d 899 (1979). aff'd 444 U.S. 74 (1980) ..................................................................... 10

Uptown Enterpr~6s v. Strand, 195 Cal.App.2d 45 (1961) ......................................................................................................... 9

Youngblood v. Wilcox~ 207 Cal.App.3d 1368 (1989) ............. ,', ...... , ..... , .... , ............. , ...... ," .................. ,." .. , ................. " 8

STATUTES

Code eiv. Pmc. 527(c) .................................... t ,t t , "., , , "., ............ 8

MEMORANDUM OF POINTS AND AUTHORITIES ISO NEA'S EX PARTE APPLIC. FOR TRO &: OSC RE PRELIM. INJUNCTION

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1 I. INTRODUCTION

2 This is an action to enjoin a trespass on private property, For four out of the five 3 weekdays last week, for hours each day, Defendant Michael Zeleny endeavored to disrupt the

4 business of Plaintiff NEA, a longtime Silicon Valley venture capital f'inr4 by intimidating its 5 personnel and business guests. He did so by entering and refusing to leave a private property

6 office park under the control and ownership of NBA and its landlord. Zeleny and his hired

7 associates confronted, interrogated and videotaped NBA employees and business visitors, seeking

8 to intip1idate and/or provoke rewIsion on the part of those who would do business with NEA.

9 AImed with a 12-gauge sholgun and a full strap of ammunition across his chest, Zeleny

10 confronted visitors to NEA, asking them if they IIsupported child molesters." His associates

11 played loud bagpipe, trumpet and accordiOll music immediately outside NEA's windows, and he

12 posted signs on NBA's office building reading: liNEA: In bed with a child rapist."

13 Cynically invoking the United States Consti~utio~ Zeleny has engaged in activity 14 unambiguously intended tOll and in fact succeeding int injuring NEA and its employees. But 15 Zeleny has miscalcUlated. The Constitution does not restrict trespass actions on all private

16 . rather, such restrictions come into la; where private property is equivalent to a public

17 forum. The simple fact here is that Zeleny is trespassing on private property-not a public forum.

18 And given that fact) it does not matter what Zeleny has or has not been saying~ or that he has been 19 arming himselfwith a shotgun, or that he has been harassing people. The point now is that he and

20 his associates have been repeatedly entering and refusing to leave the grounds surrounding NEA's

21 offices, which are all located within a larger, entirely private property office park on Sand Hill 22 Road, owned by landlord Stanford University. The point now is that Zeleny has been trespassing

23 on property where multiple posted signs spell out "PRIVATE PROPERTY NO TRESPASSING

24 NO LOlTERINGt Authorized Business use Only."

25 Put otherwise, this Complaint and this injunction application are not about speech or the 26 right to bear arms. Instead,. the single, determinative issue here is whether the evidence submitted

27 demonstrates that Zeleny is trespassing on private property and that the party in legal possession

28 of that property, NEA, is entitled to flIl injunction against this continuing trespass. Neither the 1

MEMORANDUM OF POINTS AND AUTHORITIES ISO NEA'S EX PARTE APPLIC. FOR TKO &: OSC RE PRELIM. INruNCTION

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1 ConstitUtion nor any case law interpreting it gives Zeleny or his associates the right to trespass in

2 a private office complex, be~ause an office complex is not a public forum. A private office park. 3 in fact, is very different from a shopping center or any other gathering place for the general

4 public, in which the people generally are invited to congregate and engage in open discourse.

S And while Zeleny's conduct aside fiom his treapass is QutrageousJI malicious and violates other 6 legal rights ofNEA!s, those are issues for another day. The narrow objective of this Complaint 7 and the injunction sought is to halt an ongoing, indisputably unlawful and injurious t continuing 8 trespass.

9 In that regard, the declarations and other evidence served with this TRO application 1 Q establish that:

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Zeleny and his associates have repeatedly entered and remained on the private

property surrounding NEA's offices and. under NEA's control,

they have ignored no trespassing signs,

they have refused NEA's and Stanford's demands that they leave the p~pertyJ the trespass has ca.used sUbstantialJ irreparable injury to NEA, unless Zeleny and those acting under his control are enjoined from further trespass,

17 NEA will suffer further irreparable injury. 18 Without more, PlaintiffNEA is entitled to issuance ofa Temporary Restraining Order (TRO) and 19 Preliminary InjlUlction prohibiting Zeleny's future entrance onto the office park property l NEA 20 respectfully requests that the Court issue the requested TR~ and Order to Show Cause, and halt 21 Zeleny's ongoing violation ofNEA's right to be free of trespass to its property.

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23 STATEMENT OF FACTS

A. Backaround 24

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NEA is a venture capital firm founded in 1977 with offices in China, India, the

Washington DC metropolitan area and Menlo Park, California. NEA focuses on providing

venture and growth capital in the information technology, healthcarel and energy technology

sectors. It has funded over 650 companies to date and is one of the world's largest venture capital

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firms, with approximately $11 billion in committed capital across thirteen separate funds. Sandell 2 Decl. ~2.1 3 In May 2007, NEA entered into a 1 5-year lease for office space at 2855 Sand Hill Road,

4 Menlo Park, Califomiat which is a freestanding office building that is part of a private office

5 complex owned by The Board of Trustees of the Leland Stanford Junior University ("Stanford"). 6 Dillon Decl. ~ 2. Pursuant to the lease with Stanford, NBA is the la~l te~t of2855 Sand Hill 7 Road and has a possessory interest in the walkways "leading to its building. the common tenant

8 grounds of that office park) including the entryways surrounding the building, and the parking 9 lots serving employees, clients and prospective clients (collectively, th~ "Property"). See Lease,

10 Ex. A to Dillon Decl. ~2.2 NEA has occupied the Property since November 2008, when 11 construction of its offices was completed. Gravelle Decl.1J 2. NEA's offices in the Property are

12 regularly used to transact NEA' s nonnal business operations, including, among other things,

13 hosting meetings with current and prospective business partners, investors, portfolio oompany

14 fOlUlders and executives. Sandell Decl. ~ 12. 15 B. 2009 Trespass 16 eceived emails indicatin that

17 defendant Zeleny intended to appear atNEAtg offices in Menlo Park on October 27,2009. 1 g Sandell Decl. , 6. This was not the first that NEA had heard from Zeleny; in November 2005 and

19 October 2007, Sandell received other Zeleny e-mails indicating that Zeleny intended.to appear at

20 NEA~s offices and making disparaging, outrageous and false accusations aboutNEA and Sandell. 21 The ostensible reason for Zeleny's hostility was NEA and Mr. Sandell's purported association

22 with Min Zhu, with whom Zeleny had been involved in a bitter business dispute (originating in 23 approxiIl}ately 1999 .. 2000) and multiple related lawsuits. 1d. ~Ijf 4, 5. To NEA>s knowledge, 24 however, Zeleny never appeared at NEA's offices following the initial 2005 and 2007

25 communications. 26 In October 2009, NEA received further communications from Zeleny indicating that he 27

28 1 All citations to declarations herein are to declarations in support ofNEA's Ex Parte Application for Temporary Restraining Order and Order to Show Cause Regarding Preliminary Injunction. 3

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intended to appear at NEA's offices irruriinently, ucSrrying exposed. unloaded firea.nns ...

accompanied by loaded magazines and speedloaders." Sandell Dec!. ~ 6. Given this background and Zeleny's persistence over nearly four years making wild accusations, NEA was sufficiently

concerned that on October 27, 2009,-it filed a Petition of Employer for Injunction Prohibiting Violence or Threats of Violence Against Employee And Application for Temporary Restraining

Order against Zeleny-tbe day Zeleny stated he was going to amve atNEA's offices. Sandell

Dec!. ~ 7, Ex. FI In addition, on that same date, Mr. Sandell) who had been targeted in many of Zeleny's false and harassing missives; filed a Request for Orders to Stop Harassment. Althouge.

both requests were denie~ id, the Judge indicated that "Petitioners are free to purStle any civil remedies or action they feel are just and appropriate." Jd

Later tha.t same day, on October 273 2009, Zeleny and an associate camet without

authorization or permission, to the private property where NEAts offices are located. Gravelle

Dec!. , s. Zelec.y was carrying a hand gun on his hip, and he and his associate placed disparaging

posters on the grounds immediately outside ofN~ts front door, handed out leaflets, and confronted and spoke to individuals walking down the sidewalk to NEA's offices-making it difficult for NEA ersonnel and guests and other office complex tenants and visitors to pass by

unimpeded. lei. and Ex. B. Zeleny and his associate also videotaped their own engagements with individuals passing by. ld.

Because Zeleny and his associate were on private property without authorization, and

because their conduct was alarming to others in the office park. NEA contacted the Menlo Park

Police Department. Id. , 6. The responding officers determined that Zelenyt s gun was not

loaded, but did not ask Zeleny to leave the Property. ld. Zeleny and his associate remained on

the Property outside ofNEA's front entrance and the private sidewalks and other common tenant

areas surrounding NEA' s office for approximately four hours on October 27) 2009. Jd. ~ 7. Soon after Zeleny's unauthorized and disruptive visit to the Property t NEA made a request

to the office park landlord, Stanford (via the Property management agent, Peery/Arrillaga), to post no trespass SigllB around the Property. Jd. ~ 8. Three such signs \vere posted in late 2009 on the internal road surroWlding the office park, stating ''PRIVATE PROPERTY," nNO

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TRESPASSING" and "authorized business use only.u Id and Ex, C. To NEA's krtowledges

neither Zeleny nor his associates returned to NEA's offices during the followingt' approximately one-year period.

c. 2010 Trespass

This last week, however-the week beginning September 27, 2~ 1 O-Zeleny and his associates returned in greater force than before. In disregard of the pos1ed no trespassing signs

and NEA' s rights. Zeleny increased his unauthorized presence at the Property-in terms of

duration, number of associates, and degree of dis;ruption.2 On Monday, ~eptember 27, 2010. Zeleny and his associates began a week of repeated trespass on the Property. That morning, one

of Zeleny's associates anived and entered NEAts offices, indicating that he was responding to a

request (apparently Zeleny's) for a sign holder. Zeleny himself arrived around noon. once again displaying a weapon, with an associate bearing video equipment. Gravelle Decl. ~ 9. When Zeleny arrived, the security guard hired by ~A in anticipation of Zelenyt s visit, Robert Chandler of Platinum Security, contacted the Menlo Park Police Department on NEAs behalf,3

ld 1 10. The police confirmed Zeleny's weapon was unloaded) but did not request that he leave associates left the Pro e

Chandler Decl. ~ 2, The following day, Tuesday, September 28, around 10 a.m., Zeleny and his associates

made another unauthori2ed appearance at NEA '8 offices. Id Instead of the handgun that Zeleny

displayed previously t Zeleny carried a shotgun with shotgun shells strapped in a b~nd across his

1. Internet postings placed and/or authorized by Zeleny on the on .. linc bulletin board, '\vww.crai~slist.org, in connection with his Uv1sit' to NEA last week, demonstrate the vindictive and maliolous nature of Zeleny and his campai~ to hann NEA. In one such posting dated September 22, 2010, Zeleny sought a brass baiul to accompany him and playa single song for four hours, Hawk Decl. ~ 7. In another posting dated September 29, 20rO, Zeleny gave notice tha.t he was holding a "party on Thursday) September 30 In front of New Enterprise Associates' headquarters, 2.855 Sand Hill Road" and.was offering free food for all "Zhu family members, registered sex offenders. sex workers, adult industry performers, and musicians willing to perfonn for our guests," Id. ,8. Another Zeleny message stated Zeleny intended to appear at NEAs offices again and that he would be anned and c~ing "loaded magazines, bandoleers7 and speedloaders," and that he intended to bring with him "bagpipersJ clowns, rappers, and a brQss fand. u Sandell Dec!. ~ 9, Ex. G.

In anticipation of Zeleny's unauthorized visit to its offices, NEA also had arranged for a videographer to be onsite.

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1 shoulder and chest. Gravelle Declo ~ 11. And this time, his group of associates included a 2 videographer, a bagpipe player~ and (later) a trumpeter. ld. Zeleny set up signs similar .to the 3 ones he had posted in 2009 t and he and his associates distributed or attempted to distribute

4 leaflets and confronted individuals entering or exiting NEA's offices and the adjacent office 5 buildings on the Property. /d.

6 ZeleriySs intimidating and harassing conduct provoked concern on the part ofNEA

7 personnel for their safety and the safety ofNEA' s office guests, and once again, NEA called the

8 Menlo Park Police Department to report the disturbance and Zeleny's trespass on private

9 property. ld. ~ 12, 13. Several police officers responded and checked Zelenyts weapon to 10 confirm. it was not loaded. But despite NEA' s request, the police again would not require Zeleny

11 or his associates to leave the Property. Id. 'lI 13. Zeleny and his entourage remained on the 12 Property for several hours that day_ Id

13 Although Zeleny had initially indicated that he would not return on Wednesday,

14 September 29, 1010, he nonetheless did so at approximately 4:00 p.m., again bearing a shotgun

15 and ammunition and repeating his activities from the prio~ day Id ~ 14. AgainJ NEA contacted 16

17 Gravelle (a NEA employee), Robert Hawk (NEA's outside counsel), Robert Chandler (the private 18 security guard hired by NEA), and Sergeant Prickett of the Menlo Park police approached Zeleny_ 19 Gravelle then informed Zeleny-on behalf of NEA and StanfoId (based on authorization from 20 Stanford's outside counsel (Dillon Decl. ~ 4--tbat Zeleny did not have permission to be on the 21 Property and that he and his associates should leave. Gravell.e Decl. ~ 16. Zeleny objected, 22 asserting he had a "rightn to be there. ld. Despite Zeleny's subsequent refusal ofNEAs demand.

23 the Menlo Park police still would not require Zeleny to leave. Id. 1 17. 24 On Thursday, September 30J and Friday, October 1, Zeleny an~ associates again appeared

25 . at the Property and remained much of each day. Chandler Decl. ~~ 2, 4. 8. Zeleny was armed 26 both days, and he and his associates continued leafleting. confronting, and videotaping

27 individuals outside ofNEA's offices, as well as other areas of the Property. Id ~ 3. On 28 Thursday, after Zeleny arrived, Messrs. Hawk and Chandlert~lephoned Stanford counsel Carol

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1 Dillon. who authorized Mr. Chandler, on behalf of Stanford, to again tell Zeleny that he had no

2 permission to be on the Property and should immediately leave. Id. ~ 4; Dillon Decl. ~ 5. After 3 that call, Mr. Chandler again informed Zeleny, on behalf ofNEA and Stanford; that he and his 4 associates must leave. Chandler Decl. ~ 4. Zeleny refused. Id 5 Zeleny was even more blatant in his attempts to disrupt business operations on Thursday,

6 bringing a. saxophone player, two accordion players and a bagpipes player, who all played

. 7 simultaneously outside NBA's offices. Id. ~ 5. In response to the noise, Jake Nunn. a partner at 8 NEA, Mr. Hawk, and Sergeant Prickett of the Menlo Park police accompanied Mr. Chandler, who

9 informed Zeleny the activities were disturbing the peace and that he would be subject to arrest if 10 he did not stop the music. ld. ~ 6. Menlo Park Police Sergeant Prickett confinned that he was 11 ready to respond if Zeleny did not comply. and as a result, Zeleny instructed the musicians to stop

12 playing. ld. The musicians left shortly after, but Zeleny remained on the Property until

13 approximately 5 :30 p.m. ld.

14 Before leaving for the day, Zeleny informed Sergeant Prickett that he intended to return to

15 the Property the following day, the following week. the week after that, and the month after that

16 __ u h tever it takes to break the com an

17 day. FridaYt October I-confirming that he would not stop the continuing trespass) and 18 provoking concern by other office complex tenants and guests, Chandler Decl. , 3-NEA was left

19 with little alternative but to prepate this Complaint and request for injunction. 20 21

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D. . NEA'! Efforts To Resolve The Issue Have Been Ineffective, and NEA Has Suffered And Will Continue To Suffer Irreparable Harm.

NEA made every reasonable effort to deal with Zeleny before filing this suit. Those steps,.

however, have not been successful. and NEA continues to suffer injury from Zeleny's repeated and unauthorized trespass onto the Property. NEA did what it could to minimize the impact of

Zeleny~ s presence on its business operations. To this end, NEA rescheduled meetings that were to be held ansite or moved such meetings to offsite locations; NEA also directed its personnel and

guests to enter and exit NEA's offices via a side entrance or the underground parking garage.

Gravelle Decl. , 12. Despite these steps, Zeleny and his associates continued to disrupt NEA

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business and alarmNEA personnel and visitors, even going so far as to follow a guest ofNEA

into the parking .garage. ld.

Other measures proved just as futile. NEA requested aid from the Menlo Park police, and although the police were responsive and initially spent considerable time monitoring the activities

of Zeleny and his associates, they declined to ask Zeleny to leave. (The police department's position apparently stems from concern that the department would become embroiled in civil

litigation with Zeleny. Hawk Decl. ~ 2,3. Indeed. two Menlo Park policemen advised NEA's outside counsel that the best path for NBA was to try to resolve the issue itselftbrough civil litigation. Id.) In addition, short of filing a lawsuit suit against Zeleny, NEA and Sandell tried unsuccessfully last year to get a restraining order against Zeleny. Sandell Decl. 1f 7.

NEA bas suffered substantial injury already from Zeleny's repeated trespass, and if Zeleny is not immediately enjoined from entering the Property,. NEA will continue to suffer immediate and irreparable hann. Zel~ny is not merely a nuisance, but rather a real and serious impediment to NEAts normal business a~tivities. See Gravelle Decl. ~ 18. Zeleny and ~is

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associates have disrupted NEA operations. ld. Several NEA business associates and co-tenants

have expr~ssed concern to NEA over the situation, Sandell Dec!. ~, 8 10, and the effect on NEA's reputation and on its current and. prospective business is incalculable but very serious.

18 III. NEA IS ENTITLED TO A TRO AND A PRELIMINARY INJUNCTION. 19

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NEA's ex parte IRO application should be granted1 pending a hearing on a preliminary

injlUlction) because NEA will otherwise suffer i~ediate and irreparable harm. See Code Civ. Proc. 527(c). NEA is further entitl~d to a preliminary injunction because it: (1) has a reasonable probability of success on the merits, and (2) the harm to NEA resulting from a refusal to grant the preliminaxy injunction far outweighs any purport~d hardship to Zeleny if the injunction were imposed. Bank of Stockton v. Church afSoldiers, 44 Cal,App.4th 1623. 1625-6 (1990); 11' Corporation v. County of imperial, 35 Cal.3d 63, 69 (1983); Youngblood v, Wilcox, 207 Cal.AppJd 1368, 1372 (1989). What is more, the la\v is clear: "[a]n injunction is an appropriate remedy for a continuing trespass. tt Ralph's Grocery Company v. United Food, 113 Cal. Rptr. 3d 88,93 (2010) (quotingAllredv. Harris) 14 Cal.App.4th 1386. 1390 (1993)). 'The showing by

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NEA here more than justifies the requested injunctive relief .. 2 A. A TRO Is Necessary To Prevent Further Irreparable Harm to NEA. 3 A TRO should issue in this case, pending a hearing to consider a preliminary injunction, 4 beca.use NEA will otherwise suffer irreparable harm. A continuing trespass like that of Zeleny

5 and the other defe~dants on the Property, in itself) causes irreparable hann. See) e.g" Ralph 'SJ 6 113 Cal. Rptr. 3d at 107 ("a party seeking an injunction need not establish an unlawful act beyond 7 the trespass. And the oontinuing trespass itself also ca.uses ilTeparable harm") (citations omitted). 8 Moreover. irreparable harm need not be to tangible property, but rather may include injury to 9 reputation and business interests. UptOW11 Enterprises v, Strand, 195 Cal.App.2d 45J S2 (1961)

10 (injury to reputation and business interest suffices). "When a trespasser engages in activities to 11 discourage the public from patronizing a b\1sine8S~ the effect of the activity cannot be quantified 12 b~cause there is no way of knowing who would have patronized the business but for the 13 trespasser's activities." Ralph '$, 113 Cal. Rptr. 3d at 107. The injury here affects a different kind 14 of business than in Ralph's, Jupra, but that case~s holding applies equally. Unquantifiable injury 15 to business and business prospects constitutes irreparable hann. as a matter of law. Id. (acti vities 16

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Zeleny's continued trespass on the Property leaves no room for doubt that he is out to

damage and is damaging NEA's existing and prospective business relationships. Zeleny's

proclamatio,n that he intends to continue his trespass mltil he "breaks" the company (Chandler Decl. ~ 1) cannot be interpreted differently~ nor can the effect to date of Zeleny's actions. See supra at II. D, NEA is seeking this Court's intervention so that this irreparable injury ,to NEA-existing here as a matter of lawJ common sense, and evidenc~may be halted until a hearing may proceed on NEA's requested Order to Show Cause Re Preliminary Injunction.

B. NEA Has A Strong Case On The Merits And Will Likely Prevail On Its Trespass Claim.

NEA has much more than a "reasonable probability" of success on the merits of the single

cause of action it alleges: trespass.

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1. The elements of a trespass action are unambiguously present here.

2 The facts of this case as set forth above and in the ~companying evidentiary submissions 3 unequivocally demonstrate that Zeleny and the other defendants are engaged in a continuing

4 trespass on the Property. To show trespass. NEA needs o~ly to prove (1) it had ownership or 5 control of the property in question, (2) that Zeleny and the other defendants intentionally, 6 recklessly. or negligently entered that property without permissio~ and (3) Defendants' conduct 7 was a substantial factor in causing hann to NEA. Ralph's, 113 Cal. Rptr. 3d at 93. By making

8 such showing, NEA may, without more, exercise its right to exclude trespassers from the

9 Property. See, e.g' l Allred v, Harris J 14 Cal.App.4th 1386, 1390 (1993) ("As a general rule, 10 landowners and tenants have a right to exclude persons from trespassing on private property; the

11 right to exclude persons is a fundamental aspect of private property ovvnersbip." holding one of

12 many tenants in an office building had standing to demand exclusion of trespassers on adjoining 13 parking lots and walkways) (emphasis added), . 14

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Zeleny's disingenuous invocation of Constitutional rights does not justify his contimui~gtrespa8s. . -_. .. .. 2.

Zeleny cannot justify or otherwise excuse his continuing trespass by his specious invocation of Constitutional protections .relating to free speech or bearing anns. It is true. of

course1 that certain property owners and tenants are restricted in their ability to exclude

trespassers-in limited circumstances involving private property detennined to be the equivalent

of a traditional public form. See, e.g.~ Robins v. Pruneyal'd Shopping CenterJ 23 Ca1.3d 899 (1979), qffJd 444 D .. S. 74 (1980) (demonstrators were allowed on the pxemises ofa large regional private shopping center, even though the owners objected to their presence). But the facts in PruneJlard were very djfferent than those in this case, where no shopping center is at issue. Accordingly, the principles in Pruneyard do not restrict to any degree NEA's right to exclude

Zeleny and the other defendants from the Property.

In this regard, it is clear under controlling California jurisprudence developed since Pruneyard that NBA' s offices, as well as the office park surrounding it, do not comprise a public

forum or pennit the restrictions on property rights that Pnmeyard prescribes for large shopping

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centers. For example, when considering the status of a medical center and its adjoining walkways and Pal'king lots, the court in Planned Parenthood v. Wilson, 234 Cal.App.3d 1662, 167172

(1991) (Wilson) stated: The Medical Center's six tenants exclusively offel' professional and personal services to specific clientele. It is for use only by individuals with specific business purposes, such as employees, clients and prospective clients of the tenants. The small off-street parking lot is designed to provide a convenient place to park for those having direct business with Medical Center tenants. Each parking spot is labeled for use by "tenantsH and "patients,') and there is no space ,for public parking in general. Unlike a large shopping mall or historically reoognized public forums like parks, streets or public sidewalks, the Medical Center in no way has acquired the attributes of a public forum, Indeed, both architeaturaUy"and by usage, f [i]t presents no significant opportunity to disseminate ideas, and prohibiting such activity on its premises does not curtail the realistic opportunity of citizens to exercise their right of free speech. The center [is] not the functional equivalent o.f a public place ... , (emphasis supplied) NEA's offices~ and the office park surrounding them, are no different. The tenants at the

complex (only four: NEA, Andreessen-Horowitz, J&W Seligman & Co., and Oak Hill Capital Partners) 8!e all fmanctal firms foc~ing on venture capital. private equity or asset management. Gravelle Decl. , 3 j Hawk Decl. ~ 8. Like the medical center in Wilson, these tenants "exclusively offer. , . professional services to specific clientele.7t Id. Also as in Wilson, this Property, is

intended for use onl by individuals with specific business or employment purposes visiting the

office park~ such as current and prospective investors and entrepreneurs. And, like the Wilson mectical center parking~ the Property's off-street parking lot serves as a. convenient place to park only for those having specific business in the office complex. Gravelle Docl. ~ 8. And, the streets running through the office complex are clearly marked "PRIVATE PROPERTY-NO

TRESPASSING NO LOITERING-AUTHORIZED BUSINESS USE ONt Y." ld Like the

Wilson medical center~ NEA's offices and the office complex surrounding them lack the indicia oft and are not remotely the functional equivalent of, a public space.

Neither Zeleny's putported expressive activities nor his Second Amendment activities~ therefore, excuse his trespass. See also Feminisf Women's Health Center v. Blythe, 32 Cal.App.4th 1641, 1654',1660.1661 (1995) (a multi-story medical office building with several tenants, including physicians and a pharmacy. and a 40-space parking lot reserved for tenants and

their clients and visitors is not a public forum)j Allred v. Shawle).J, 232 Ca1.App.3d 1489, 1494 11

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1 (1991) (a 14,OOO-square .. foot medical office building, in w~ch retail sales were prohibited, with 2 an adjoining 12,OOO-square-foot medical office building and a shared 14S"space parking lot is a. 3 not a public forum); Bank a/Stockton, 44 Cal.AppAth 1623 (a single purpose two story building 4 (bank) with en adjoining parking lot reserved for customers is not a public form; such a property 5 does not provide a place for the general public to congregate, as only those who were transacting 6 business with the bank were invited on the property). 7

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c. The Balance Of Hardships Favors Gra;nting A Preliminary Injundion, Having shown a very substantial likelihood it will win on the merits, the balance of

hardships becomes secondary, as the greater the moving party's showing on one factor) the less that must be shovvn on the other. Butt v. State o/Cal., 4 Cal.4th 668~ 678 (1992). In effect, U[iJn the unique setting offree speech rights versus private property rights, this harm analysis is the

same as the analysis ooncerning the likelihood of success on the merits." Bank of StOCktD1~, 44 Cal.App.4th at 1631 .. NEA's strong showing regarding.likelihood of success ~dercuts any notion of harm to Zeleny and is tantamount to a balance of hardships in NEA's favor.

Moreover, any balance ofha:rdships would decidedly tip in NEA's favor in all events. If t'\t'l'\n.t"I~" NEA ~i 1

continue 10 suffer serious and irreparable hann. See supra, Part n.D. By contrast, Zeleny and the other defendants face no hann whatsoever ifa TRO and preliminary injunction are granted. Even when prevented from entering the office park, Zeleny and his (paid) associates may still exercise purported rights to speak and bear arms as they.see fit---at any public forum-just not on the private property surrounding NEA's offices. For these reasons, the balance of hardships plainly

favors granting the requested relief.

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IV. CONCLUSION

For the reasons set forth above~ NBA respectfully requests that the Court grant its

applicatioll for a TRO and Order to Show Cause Re Preliminary Injunction. Dated: October Ss 2010 HOGAN LOVELLS US LLP

By: ______________________ __

Robert B. Hawk

HOGAN LOVELLS US LLP 525 University Avenuet 4th Floor Palo Alto, California 994301 Telephone: (650) 4634000 Facsimile: (650) 463-4199

Attorneys for Plaintiff New Enterprise Associates. Inc.

13 lVIEMORAA'IDUM OF POINTS AND AutHORITIES ISO NEA'S EX PARTE APPLIC. FOR TRO &:. OSC RE PRELIM. INJUNCTION W.Dl4&lM)OOOOl.$1~

Mr. Michael Zeleny Hand Delivered

Dear Mr. Zeleny,

STANFORD UNIVERSITY

October 8, 2010

For the past two weeks, you have been periodically coming onto property owned by the Leland Stanford Junior University, at times with a shotgun and a filled ammunition belt slung over your shoulders. You have disrupted the businesses of our tenants in the office complex behind the Rosewood Sand Hill Hotel, and employees and guests of the hotel, both by your presence on the property and the disruption caused by associates you have brought on the property to photograph and videotape persons having legitimate businesson the property and to play musical instruments. You followed a Rosewood employee for more than 100 yards on October 1, causing her to be in fear for her safety. Your associate appeared to have videotaped this event without her permission. With your gun in full view, you also stood in the middle of an access road in a confrontational stance in full view of a contractor who had come to the hotel to perform maintenance services, causing him to nearly refuse to perform services for the hotel.

The property owned by the Leland Stanford Junior University is private property. The landowner has the legal right to bar anyone from its premises, including persons whom it believes has disrupted or will disrupt its normal business operations. Further, as part of its efforts to maintain a safe working environment for all employees, residents and visitors to its property, the landowner has the legal right to bar anyone from its premises, including persons whom it believes has interrupted or interfered or will interrupt or interfere with its efforts to maintain a safe environment. Thus, this is formal notice that your presence on the following Stanford property is prohibited effective immediately: the Rosewood property commonly known as 2825, 2855 through 2885, and 2725 through 2775 Sand Hill Road in Menlo Park, 450 through 585 Broadway and 1228 Douglass in Redwood City, and the Stanford campus (as shown on the map attached to this letter). Stanford policy specifically prohibits weapons on campus. For the avoidance of doubt, your presence on any of the above-described property after delivery of this letter will be unlawful and you may be subject to arrest for trespass.

I urge you to comply voluntarily with this prohibition. However, please understand that should you choose to disregard it, you may subject yourself to law enforcement intervention, including arrest for trespass or other possible legal action.

Very truly yours,

The Office of the Vice President & General Counsel

cc: Chief Brian Roberts, Menlo Park Police Department Chief Laura Wilson, Stanford Department of Public Safety

Building 170, 3rd Floor. Main Quad. Post Office Box 20386. Stanford. CA 94305-2038

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I, _________ , declare:

1.

2.

. I am a private security guard employed by ___________ _

On October __ ,2010, as part of my duties, I was asked to deliver a letter, with

an attached map, to Michael Zeleny. Attached hereto as Exhibit A is a true and correct copy of

what I delivered to Mr. Zeleny from the Office of the Vice President and General Counsel of

Stanford University.

3. I read the contents of the letter to Mr. Zeleny and handed the letter to him.

4. Mr. Zeleny did __ did not __ accept delivery of the letter.

I declare under penalty of perjury and under the laws of the United States that the

foregoing is true and correct.

Executed 'this __ day of October, 2010 in Menlo Park, California.

Al73S24062. J

Kaufman, Sharon A

From: Sent: To: Cc:

Subject:

larvatus@gmail.com on behalf of Michael Zeleny [zeleny@post.harvard.edu] . Saturday, October 09,20109:27 AM Kaufman, Sharon A Dixon, William A; David W. Affeld; McClure, William; sandhill@rosewoodhotels.com; Roberts, Bryan A; Burt, Lacey A Re: Relocation of Protest Site

Thank you for your helpful clarification. Per the explanation given yesterday by Sgt Dixon, I await the letter explaining the legal grounds of your order to terminate my protest. I note that the relevant sections of P.C. 602 specifically exempt "any person on the premises who is engaging in activities protected by the California Constitution or the United States Constitution." Please note that my activities fit within this category pursuant to the rulings in Prunevard Shopping Center v. Robins, 447 U.S. 74 (1980) and progeny. Please forward your correspondence in this regard to my lawyer David W. Affeld , Affeld Grivakes Zucker LLP, 12400 Wilshire Boulevard, Suite 1180, Los Angeles CA 90025, phone: (310) 979-8700, fax: (310) 979-8701. My contact information is listed below.

Michael Zeleny@post.harvard.edu -- http://iarvatus.livejournal,com/-- 7576 Willow Glen Road, Los Angeles, CA 90046 -- 323.363.1860 All of old. Nothing else ever. Ever tried. Ever failed. No matter. Try again. Fail again. Fail better. --Samuel Beckett

On Fri, 'Oct 8, 2010 at 1 f:56 AM,Kaufinan, Sharon A wrote:

I will first address the musical performances issue:

Be advised that being on a public sidewalk you are subject to conform to not only Penal and Vehicle Code restrictions, but also to Menlo Park Municipal Code requirements. We have a noise ordinance in the City of Menlo Park which restricts and/or prohibits the use of loud and unreasonable noise. You will find this under Menlo Park Municipal Code R.06.020 and 8.06.030. These sections in part, not verbatim, that a "Noise Disturbance" means any source of sound which exceeds the noise limitations permitted in MP Muni Code section 8.06.030. For purposes of the section, sources of sound shall include but are not limited to the following: Amplified music, loudspeakers, radios, televisions, stereos, musical instruments, etc .... R.06.030 states that the noise limitation for daytime hours are not to exceed (60) DBA as measured from the nearest affected property. Also any street musician on public property is subject to pay a two dollars per day per person, per MP Muni Code 5.20.0 I 0(9)

Next, PC415(2) states: Any person who maliciously and willfully disturbs another person by loud and unreasonable noise. Being "malicious" is making an overt act not necessarily a wrongful act. Regarding the case law you quote, People v. Superior COllrl (Commons) (1982). 135. refers to acts committed by a person who is in violation of 415(3), which states that '''Any person who uses offensive words in a public place which are inherently likely to provoke an immediate violent reaction. The jury instruction you provide by the Grand Jury does not supersede the penal code, and the parameters of the case being heard by them is unknown and may not be applicable.

1

Further. in regards to being on public property, you must be aware that MP Municipal Code 13.1S.020(c) - No encroachment of any kind, which impedes, obstructs or denies pedestrian, vehicular or other lawful travel within the limits of the public right of way or which impairs adequate sight-distance or safe pedestrian or vehicular traffic, will be permitted.

Lastly, you state that you intend to incorporate your protest the publicly accessible grounds of Rosewood Hotel. Be reminded that Rosewood Hotel is on Private Property and you have already been advised that you are not to return there, this includes parking of vehicles, etc ...

This is all for your information, in the spirit of cooperation

Sharon Kaufillall

lilterilu COl1111lallder Patrol Operatiolls

Menlo Park Police Departl1lent

650-330-6321

sakaufnlan@Jllelllopark.org

From: larvatus@gmail.com [mailto:larvatus@gmail.com] On Behalf Of Michael Zeleny Sent: Friday, October 08, 2010 10:20 AM To: Dixon, William A; David W. Affeld Cc: Kaufman, Sharon A; McClure, William; sandhill@rosewoodhotels.com Subject: Relocation of Protest Site

Dear S gt Dixon,

Per our phone conversation yesterday, I am confirming the relocation of my protests against NEA to the front entrance of the site comprising Rosewood Sand Hill Hotel and the office park that contains NEA. In connection with this relocation, until and unless I receive further notification from Menlo Park Police, I intend to reinstate my musical perfonnances at the new protest site, in support of my message. Please note that in order to secure conviction under P.C. 415(2), against any person who maliciously and willfully disturbs another person by loud and unreasonable noise, the prosecutor must prove that the defendant (a) willfully and maliciously caused loud and unreasonable noise, and that (b) the noise disturbed another person. Here "maliciously" means intentionally doing a wrongful act with the unlawful intent of annoying or injuring another person, whereas that the noise "disturbed another person" means that the noise (c) presented a danger of immediate violence, or (d) was used for the purpose of disrupting lawful activities, rather than as a means to communicate. Please see in this regard People v. Superior Court (Commons) (1982), 135 Cal.App.3d 812,817: "We are satisfied that loud shouting

2

and cheering constitute the loud 'noise' prohibited by [Penal Code] section 415 only in two situations: I) where there is a clear and present danger of imminent violence and 2) where the purported communication is used as a guise to disrupt lawful endeavors." Also, please refer to Judicial Council Of California Criminal Jury Instruction 2g8? --_Di~tur~ilJg the P~~ce:Loud and Unreasonable Noise: "In orderto disturb another person by causing loud and unreasonable noise, there must be either: [I] A clear and present danger of immediate violence; OR [2] The noise must be used for the purpose of disrupting lawful activities, rather than as a means to communicate."

Please be advised further that until and unless I receive further notification from Menlo Park Police, I intend to incorporate into my protest the publicly accessible grounds of Rosewood Sand Hill under the authority of rulings in Pruneyard Shopping Center v. Robins, 447 U.S. 74 (1980) and progeny. I am sure that your city authorities will recognize that publicly accessible grounds of that hotel fully realize the qualities of a "miniature downtown" identified in Pruneyard. Please accept my assurances of continued compliance with police orders in this matter. Please note also that my crew has aI-ready been assaulted by the hotel staff, whose director of facilities has been captured on video threatening to "take [me] down". I trust that your department will do its best to forestall further unlawful acts by the hotel personnel and other parties objecting to our activities.

Michael Zeleny@post.harvard.edu -- http://larvatus.livejoumal.com!-- 7576 Willow Glen Road, Los Angeles, CA 90046 -- 323.363.1860 All of old. Nothing else ever. Ever tried. Ever failed. No matter. Try again. Fail again. Fail better. -- Samuel Beckett

3

Kaufman. Sharon A

From: Sent: To: Cc: Subject:

Dear Sgt Dixon,

larvatus@gmail,com on behalf of Michael Zeleny [zeleny@post.harvard.edu] Friday, October 08,2010 10:20 AM Dixon, William A; David W. Affeld Kaufman, Sharon A; McClure, William; sandhill@rosewoodhotels.com Relocation of Protest Site

Per our phone conversation yesterday, I am confirming the relocation of my protests against NEA to the front entrance of the site comprising Rosewood Sand Hill Hotel and the office park that contains NEA. In connection with this relocation, until and unless I receive further notification from Menlo Park Police, I intend to reinstate my musical performances at the new protest site, in support of my message. Please note that in order to secure conviction under P.C. 415(2), against any person who maliciously and willfully disturbs another person by loud and unreasonable noise, the prosecutor must prove that the defendant (a) willfully and maliciously caused loud and unreasonable noise, and that (b) the noise disturbed another person. Here "maliciously" means intentionally doing a wrongful act with the unlawful intent of annoying or injuring another person, whereas that the noise "disturbed another person" means that the noise (c) presented a danger of immediate violence, or (d) was used for the purpose of disrupting lawful activities, rather than as a means to communicate. Please see in Q .. .d.,. this regard People v. Superior Court (Commons) (1982),135 Cal.App.3d 812,817: ''We are satisfied ~~ that loud shouting and cheering constitute the loud 'noise' prohibited by [Penal Code] section 415 only t-in two sItuations: 1) where there is a clear and present danger of imminent violence and 2) where the purported communication is used as a guise to disrupt lawful endeavors." Also, please refer to ~ 171.a-:t Judi.cial Co.uncil.OfCalifornia Criminal Jury Instruction 2689--- Disturbing the Peace: Loud and .~ Unreasonable Noise: "In order to disturb another person by causing loud and unreasonable noise, ~ there must be either: [1] A clear and present danger of immediate violence; OR [2] The noise must be used for the purpose of disrupting lawful activities, rather than as a means to communicate."

Please be advised further that until and unless I receive further notification from Menlo Park Police,.! intend to incorporate into my protest the publicly accessible grounds of Rosewood Sand Hill under the authority of rulings in Pruneyard Shopping Center v. Robins, 447 U.S. 74 (1980) and progeny. I am sure that your city authorities will recognize that publicly accessible grounds of that hotel fully realize the qualities of a "miniature downtown" identified in Pruneyard. Please accept my assurances of continued compliance with police orders in this matter. Please note also that my crew has already been assaulted by the hotel staff, whose director of facilities has been captured on video threatening to "take [me] down". I trust that your department will do its best to forestall further unlawful acts by the hotel personnel and other parties objecting to our activities.

Michael Zeleny@post.harvard.edu -- http://larvatus.livejournal.com/-- 7576 Willow Glen Road, Los Angeles, CA 90046 -- 323.363.1860 All of old. Nothing else ever. Ever tried. Ever failed. No matter. Try again. Fail again. Fail better. --Samuel Beckett

1

Kaufman. Sharon A

From: Kaufman, Sharon A Sent: To:

Friday, October 08, 2010 11 :59 AM _Police Management Staff

Subject: FW: Relocation of Protest Site

Here is an email that was sent to Sgt. Dixon this morning on Mr. Zeleny's intentions. I prepared and sent the below response for your information.

I will first address the musical performances issue:

Be advised that being on a public sidewalk you are subject to conform to not only Penal and Vehicle Code restrictions, but also to Menlo Park Municipal Code requirements. We have a noise ordinance in the City of Menlo Park which restricts and/or prohibits the use of loud and unreasonable noise. You will find this under Menlo Park Municipal Code 8.06.020 and 8.06.030. These sections in part, not verbatim, that a "Noise Disturbance" means any source of sound which exceeds the noise limitations permitted in MP Muni Code section 8.06.030. For purposes of the section, sources of sound shall include but are not limited to the following: Amplified music, loudspeakers, radios, televisions, stereos, musical instruments, etc .... 8.06. 030 states that the noise limitation for daytime hours are not to exceed (60) DBA as measured from the nearest affected property. Also any street musician on public property is subject to pay a two dollars per day per person, per MP Muni Code 5.20.010(9)

Next, PC415(2) states: Any person who maliciously and willfully disturbs another person by loud and unreasonable noise. Being "malicious" is making an overt act not necessarily a wrongful act. Regarding the case law you quote, People v. Superior Court (Commons) (1982), 135, refers to acts committed by a person who is in violation of 415(3), which "states"that "Any-perso~ who u~es offensive words in a public place which are inherently likely to provoke an immediate violent reaction. The jury instruction you provide by the Grand Jury does not supersede the penal code, and the parameters of the case being heard by them is unknown and may not be applicable.

Further, in regards to being on public property, you must be aware that MP Municipal Code 13.18.020(c) - No encroachment of any kind, which impedes, obstructs or denies pedestrian, vehicular or other lawful travel within the limits of the public right of way or which impairs adequate sight-distance or safe pedestrian or vehicular traffic, will be permitted.

Lastly, you state that you intend to incorporate your protest the publicly accessible grounds of Rosewood Hotel. Be reminded that Rosewood Hotel is on Private Property and you have already been advised that you are not to return there, this includes parking of vehicles, etc ...

This is all for your information, in the spirit of cooperation

Sharon Kaufman Interim Commander Patrol Operations Menlo Park Police Department 650-330-6321 sakaufman@menlopark.org

From: larvatus@gmail.com [mailto:larvatus@gmail,com] On Behalf Of Michael Zeleny Sent: Friday, October 08, 2010 10:20 AM To: Dixon, William A; David W. Affeld Cc: Kaufman, Sharon A; McClure, William; sandhill@rosewoodhotels.com Subject: Relocation of Protest Site

1

Dear Sgt Dixon,

Per ()ur phone cOQyersation yesterday, I am confirming the relocation of my protests against NEA to the front entrance of the site comprising Rosewood Sand Hill Hotel and the office park that contains NEA. In connection with this relocation, until and unless I receive further notification from Menlo Park Police, I intend to reinstate my musical performances at the new protest site, in support of my message. Please note that in order to secure conviction under P.C. 415(2), against any person who maliciously and willfully disturbs another person by loud and unreasonable noise, the prosecutor must prove that the defendant (a) willfully and maliciously caused loud and unreasonable noise, and that (b) the noise disturbed another person. Here "maliciously" means intentionally doing a wrongful act with the unlawful intent of annoying or injuring another person, whereas that the noise "disturbed another person" means that the noise (c) presented a danger of immediate violence, or (d) was used for the purpose of disrupting lawful activities, rather than as a means to communicate.- Please see in this regard People v. Superior Court (Commons) (1982),135 Cal.App.3d 812, 817: "We are satisfied that loud shouting and cheering constitute the loud 'noise' prohibited by [Penal Code] section 415 only in two situations: 1) where there is a clear and present danger of imminent violence and 2) where the purported communication is used as a guise to disrupt lawful endeavors." Also, please refer to JUdicial Council Of California Criminal Jury Instruction 2689 - Disturbing the Peace: Loud and Unreasonable Noise: "In order to disturb another person by causing loud and unreasonable noise, there must be either: [1] A clear and present danger of immediate violence; OR [2] The noise must be used for the purpose of disrupting lawful activities, rather than as a means to -communicate."

Please be advised further that until and unless I receive further notification from Menlo Park Police, I intend to incorporate into my protest the publicly accessible grounds of Rosewood Sand Hill under the authority of rulings in Pruneyard Shopping Centf!r y. Robins, 44? lJ_.~. 7 4 {198Q) ~nd pr9g~ny! I am sure fhafyour Cifyauthofitieswillrecognize that publicly accessible grounds of that hotel fully realize the qualities of a "miniature downtown" identified in Pruneyard. Please accept my as~urances of continued compliance with police orders in this matter. Please note also that my crew has already been assaulted by the hotel staff, whose director of facilities has been captured on video threatening to "take [me] down". I trust that your department will do its best to forestall further unlawful acts by the hotel personnel and other parties objecting to our activities.

Michael Zeleny@post.harvard.edu -- http://larvatus.livejournal,com/-- 7576 Willow Glen Road, Los Angeles, CA 90046 -- 323.363.1860 All of old. Nothing else ever. Ever tried. Ever failed. No matter. Try again. Fail again. Fail better. --Samuel Beckett

2

10/15/2010 16:09 3109798701 AGZ LLP PAGE ell

FACSIMILE TRANSIvlISSION COVER PAGE

AFFELU GKIVAKES ZUCKER LLP

12400 WIl .. :SHJRE BOULEVARD SUITE 1180

Los ANGeLeS, CALIFORNIA 90025 TEJ.lEPHONE: (310) 9798700

F 1\ x: (310) 979-870 I

October 15,2010

NAME: William L. McClure OFFICE: Jorgenson, Siegel, McClure & Flegel, LLP

LOCATION: Menlo Park CA

FAX PHONE: (650) 324 .. 0227 OFFICE PHONE: (650) 3249300

FROM: David W. Affeld SENDER'S PHONE: (3 10) 979-8700

NUMBER OF PAGES (including cover sheet): --L

COMfv'IENTS:

CONFTDENTIALITY NOTE: The inrormation trDnsmittcd in this facsimile messAge is sent by an attorney or that attorney's agent. It is int~nded to be confidential Bnd (or the llse of onc the individllftl or entity named Hbove. If the recipient is ft client, this me3sage may nlsa be for the purpose of rendering legal advice and thereby privileged. Irthe render ofthis ms3age Is not the intcnded recipient, you nre hereby notified that nny retention, disseminRtion, distrIbUtion, 01' copy or this telecopy is strictly prohibited. If you have receIved this facsimile in error. ph~R5e immediately notify u!' hy telephone and return the original message to us nt the address above vill the moil service (we will reimburse postage). Thank you.

PleDse notc the total number of pages to be trAnsmitted. If you do not receive the numbn indicated, please call (3 J 0) 979-8700.

10/15/2010 16:09 31097987131 AGZ LLP PAGE 02

AFFELD GR(VAKES ZUCKER LLP 12400 WILSHIRE: 80ULEVARO

,",I.IITE: 1190

LOS ANGELES. CALIFORNIA 90025 TEL (310) 979-6700 FAX (.:310) 979-9701

October IS! 2010

By Fax. Email (odD, and Regular lVlaiI

William L. Iv1cCIure Jorgenson, Siegel, McClme & Flegt:l, LLP 1100 Alma Street, Suite 210 tvlcnlo Park, CA 94025-3392

Rc! First Amendment Protest Activity by Michael Zeleny at Rosewood Sand Hill

Dear Mr. McClure:

I understand that you are involved on behalf of the City Attorney's office for the City of lvlcnlo Park with respect to protest activity by Michael Zeleny at Rosewood Sand Hill, directed at New Enterprise Associates, Inc. ("NEA"). I further understand that officers from the Menlo Park PoHce Department have told Mr. ZeJel1Y that ifhe continues his protest activity al that site, he will be prosecuted for criminal trespass, and that they have done so at your direction.

We are at a complete loss to understand what the legal grounds cou.1d possibly be on 'which the Department is authorized to order Mr. Ze]eny to terminate his protest. Penal Code 602.1 (a), for example, provides as follows:

Any person who intenti.

10/15/2010 15:09 31097987131

AFFELD GRIV AKES ZUCKER LLP

William L. McClure October 1:'i, ?O 1 0 Page 2

AGZ LLP PAGE 03

SimilarlYt Section 602(0) criminalizes "[r]efusing or failing to leave landt real property, or structures belonging to or .lawfully occupied by another and not open to the &eneral public .. upon being requested to leave ... " (emphasis added.). Rosewood Sand Hill is quite obviously open to the public. The main tenant on the property is a botel complex which operates a restaurant and two spas, among other things, all of which are offered to the public. NEA itself has visitors come and go daily.

Furthermore, local ordinances cann.ot override Mr. Zeleny's exercise of hj~ righl of protest under the First and Fourteenth Amendments to the United States Constitution. See Prune yard Shopping Center v. Robins, 447l LR 74 (1980) and progeny. Furthermore, free speech rights vis-a-vis a the rights of an owner of private property open to the public are even broader under the California State Constitution than under the United States Constitution. Robins v. Pruneyard Shopping Canter, 23 Cal. 3d 899 (I 979), affinned by the United States Supreme Court in the decision cited immediately above.

Sargent Dixon of the Menlo Park Police Department told Mr. Zeleny last Friday, October 8: 2010, that his depanmenr was drafting a letter that would explain the basis tor ejecting Mr. Zeleny {rom the grounds of Rosewood SandHill. It has'beeifa\veek'arid no such letter hns been received yet. \Vhether the Police Depal'ttllc::ut l~~uc::!:) 1h~ l~lter or your office does, please forward a copy to me at your earliest opportunity. We welcome the opportunity to meet ~nd confer with you in the hope that litigation to overcome the abridgement of Mr. Zeleny's Constitutional rights can be avoided. In addition, unless the City can state coherent grounds for its position, Mr. Zeleny \-vill resume his protest activhy. If the City then makes good on it.'\ threat to arrest him for exerc.ising his Constitutional rights, he will pursue a civil rights action against all responsible parties.

Very truly yours,

David W. Affcld

c: Robert B. Hawk

: ... :. '.~.:,. . #~'.,";: ...... ~: ......... "'-o ... _~ , _ - ............ , ................. .

James Barrett; Jay Graf; Jimmy Treybig; John Nehra; Jon Sakoda; Josh Makower; Justin Klein; Krishna 'Kittu' Kolluri; Louis Citron; Mark Perry; Megan Alderete; Mike O'Dell; Mike Ramsay; Mohamad Makhzoumi; Nitin Sharma; Patrick Chung; Patrick Kerins; Paul Hsiao; Paul Walker; Peter Barris; Peter Behrendt; Peter Morris; Peter Sonsini; PM Pai; Ralph Snyderman; Ravi Viswanathan; Richard Whitney; Rick Yang; Robert Croce; Robert Garland; Rohini Chakravarthy; Ryan Drant; Sara Nayeem; Scott Gottlieb; Scott Sandell; Sigrid Van Bladel; Sujay Jaswa; Suzanne King; Tim Schaller; Tom Grossi; Tony Florence Subject: Public Protest at Rosewood Sand Hill Compound

Dear Rosewood Sand Hill Hotel management and Menlo Park city authorities,

Please be advised that starting on 18 April 2011, my associates and I will resume open-ended peaceful public protests last held in the Fall of 2010 in front of NEA, 2855 Sand Hill Road, Menlo Park, CA 94025. T~e purpose of our demonstrations will be to protest Subrah Iyarls employment by Cisco/WebEx, Scott Sandell's employment by NEA, and the association of these individuals and their employers with Min Zhu, as explained at http://www.subrah.com.

As you know, a civil action by NEA against me for trespass is pending as Case No. 499465 in San Mateo Superior Court. During its pendency, my associates and I will abstain from entering the grounds of the Rosewood Sand Hill compound at 2855 Sand Hill Road. Our action will therefore take place at the public easement adjacent to its entrance. As before, we are planning to feature topical displays, openly carried unloaded firearms, and relevant entertainment. As before, in the spirit of courtesy, we are prepared to discuss reasonable mutual accommodations pertaining to the time, place, and manner of our performances. In this connection, I am attaching for your commentary a mockup of a hand-held 301 banner that we are planning to string across the entrance to the Rosewood Sand Hill compound. As an example of possible accommodations, pursuant to your agreement we would be willing to minimize our impact on the bUsiness of Rosewood Sand Hill Hotel by relocating our displays from the entrance to its compound to the far end of its grounds adjacent to NEAls quarters.

Concerned parties may address their communications to my lawyer David W. Affeld , Affeld Grivakes Zucker LLP, 12400 Wilshire Boulevard, Suite 1180, Los Angeles CA 90025, phone: 310.979.8700, fax: 310.979.8701. I may be reached at the number listed below.

Michael@massmeans.com I Zeleny@post.harvard.edu 17576 Willow Glen Road, Los Angeles, CA 90046 I 323.363.1860 I http://www.subrah.com http://larvatusJivejournal.coml"AIi of old. Nothing else ever. Ever tried. Ever failed. No matter. Try again. Fail again. Fail better." -- Samuel Beckett

2

Kaufman, Sharon A

From: Sent: To: Cc: Subject:

Sharon,

Dan K. Siegel [dks@jsmf.com] Wednesday, October 12, 2011 9:31 AM Kaufman, Sharon A McClure, William; Robin H. Riggins Zeleny

I have reviewed the Zeleny documents and discussed them with Bill. As the area marked in pink on the map/diagram you sent me is covered by a public access easement, the general public, including Mr. Zeleny, has the right to be on the land for any lawful purpose. As protesting is a protected First Amendment right, Mr. Zeleny may conduct his protest on the public access easement.

I have reviewed the Judgment and Permanent Injunction ("Order") and it does not prevent Mr. Zeleny from protesting in this location. The Order is limited to a small geographic area that does not contain the pink public easement. Furthermore, the Order does not ban Mr. Zeleny from protesting on public property.

Lastly, any issues arising out of Mr. Zeleny posting of videos and addresses of individuals who enter onto 2855 Sand Hill Road are issues for those individuals to resolve and are not issues in which the City can or should be involved.

If you have any questions or concerns please email or telephone me. Both Bill and I are available to consult with you or whomever else in the Department wishes to discuss the planned resumption of these protests.

Dan

1

Jerry Brown signs ban on open-carry of handguns

I Search -Q . r. SFGate r Web Search by YAHOOI r Businesses ! Al:!vanced

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Jerry Brown signs ban on open-carry of handguns Wyatt Buchanan, Chronicle Sacra mento Burea u Tuesday, October 11, 20 11

:J PRI NT 3 EMAIl c,..."> SHARE :) CO~l "'EtlTS(3S3) E FONT I SlZE: .;J ..:J

(10-10) 11:24 PDT Sacramento -

32

Gov. J eny Br 0\\11 bas outlawed the open carrying of unloaded handguns in Califo rnia, signing a bill late

902

Sunday night that makes the practice tha t had been popular with some gun rigbts advocates a misdemeanor in the state.

8

I - P,,-,iC!Ww,''''''C''n.-.lo.o\oo ~~~~ ~~r~~~~ ~:';t;~n~1!~~~~~~;~r.g~~~o~lIe wa1kino on North The bill, ABl44 by Assemblyman

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other exemptions.

Anthony Portantino, D-La Canada Flio tridge (Los Angeles

County), will take effect J ao. 1 aod was backed by law enforcement officials throughout the state who said the practice created a public safety issue.

'''''Te "iew the open carrying of unloaded handguns as a threat to the safe ty of the communities we police and the safety of our officers," said David L Maggard, Jr., presiden t of the California Police Chiefs Associa tion.

The ban does Dot apply to law enforcement, people authorized to carry loaded weapons in public or to people selling unloaded weapons at gun shows, among

Violations of the law will carry a fine of up to $ 1,00 0 and up to six months in count)'jail.

In addition, Brown signed into law a bill that will require that the infonnation from purchasers of long guns , such as rifles and shotguns, be retained by the state Department of Justice in the same \',>,ay information about handgun purchasers is retained .

Currently. the information of people who buy long guns is destroyed.

In a message accompanying the signed bill, AB809 by Assemblyman Mike Feuer, D-Los Angeles, Brown wrote, "Since the state already reta ins handgun purcbaser information, I see no reason why the state should not also retain information pertaining to the sale of iongguns."

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