"The price of justice is eternal publicity." Arnold Bennett

Intel's Rebuttal To Hamidi's Opposition For Summary Judgement

LINDA E. SHOSTAK (Bar No. 64599)

MICHAEL A. JACOBS (BAR No. 111664)

KURT E. SPRINGMANN (BAR NO. 196813)

MORRISON & FOERSTER LLP

425 Market Street

San Francisco, California 94105-2482

Telephone: (415)268-7000

Attorneys for Plaintiff

INTEL CORPORATION

 

SUPERIOR COURT OF THE STATE OF CALIFORNIA

COUNTY OF SACRAMENTO

 

INTEL CORPORATION,	No. 98AS05067
Plaintiff
	Department: 53
	REPLY IN SUPPORT OF
KOUROSH KENNETH HAMIDI and	INTEL'S MOTION FOR
FACE - Intel, a purported California	SUMMARY JUDGMENT
nonprofit organization,
Defendant

Reply Due: Apr. 14, 1999

Hearing Date: Apr. 19, 1999

Trial Date: Not set

The only significant issue in this motion is whether HAMIDI's mass emailings represent trespass to chattels. If, as the Court ruled at the preliminary injunction phase of this proceeding and INTEL again establishes below, HAMIDI's actions meet the elements of this tort, then HAMIDI has no defense to INTEL's claim. INTEL's motion does not raise genuine constitutional issues. INTEL merely asks this Court to rule that HAMIDI cannot intrude into INTEL's proprietary computer networks through his transmittal of unwanted e-mails. This is a private property case, not a free speech case.

The factual and legal picture of this dispute has not significantly changed since the Court's preliminary injunction ruling. HAMIDI's opposition to INTEL's

INTEL's REPLY IN MOTION FOR SUMMARY JUDGMENT

motion for summary judgment identifies no genuine factual dispute. Indeed, HAMIDI's opposition papers concede many of the factual and legal points in INTEL's motion:

• HAMIDI admits sending seven mass e-mails to INTEL over the last two years. Opposition to Summary Judgment at 2:18-20; HAMIDI's Response to INTEL's Statement of Facts 7.

• HAMIDI admits that INTEL told him to cease sending mass e-mails to INTEL and that he continued his e-mail campaign nonetheless. HAMIDI's Response to INTEL's Statement of Facts 5.

• HAMIDI no longer argues that California labor law protects his mass emails.

• HAMIDI no longer argues that California's constitutional free speech protections provide greater protection to his e-mails than federal law.

HAMIDI's opposition argument thus does not dispute the essential facts; rather, it seeks to reconstruct the law of trespass to chattels and thereby find a basis for avoiding summary judgment. Properly applied, however, the law on trespass to chattels vitiates his defenses. HAMIDI's attempts to invoke constitutional protections are similarly unavailing. Because this motion presents no genuine material factual dispute and INTEL is entitled to judgment as a matter of law, the Court should grant INTEL summary judgment.

ARGUMENT

I. UNDER CALIFORNIA LAW, HAMIDI'S E-MAIL IS INTRUSIONS INTO INTEL'S COMPUTER SYSTEM CONSTITUTE A TRESPASS TO CHATTELS

To prevail in this motion, INTEL must establish, as a matter of undisputed fact, that HAMIDI's mass e-mailings represent trespass to chattels. In view of HAMIDI's opposition papers, this motion turns on whether his e-mails represent "intermeddling" with INTEL's property and whether they caused injury to INTEL.

 

As INTEL stated in its opening brief, the law governing this motion is set forth in Thrifty-Tel Inc. v. Bezenek, 46 Cal. App. 4th 1559 (1996). In Thrifty-Tel, the court discussed the evolution of trespass to chattels from traditional personal property into the computer era. Id. at 1566-67 and 1566 n.6. Unconsented intermeddling with another's property amounts to a trespass to chattels. Id. at 1567 n.8 (citing Restatement Second of Torts section 217(b)). The Thrifty-Tel court held that in the modern context, electronic signals directed at a computer system are-sufficient intermeddling to support an action for trespass to chattels. Id. at 1566-67 and 1566 n.6.

Under Thrifty-Tel, the tort of trespass to chattels consists of an (1) intentional (2) intermeddling or interference with (3) personal property of another (4) causing injury. HAMIDI admits intentionally sending seven mass e-mails to INTEL over the last two years. Opposition to Summary Judgment at 2: 18-20. HAMIDI specifically admits sending the September 1998 e-mail. HAMIDI Response to INTEL Request for Admission No. 3 (Attached as Ex. 1). That was some five months after HAMIDI admits that he was directed to cease and desist. HAMIDI's Response to INTEL's Statement of Facts 5; Springmann Decl. in Support of Summary Judgment at Ex. 7-8. Whether HAMIDI believed that he was legally entitled to send these e-mails is irrelevant; a mistaken belief of law or fact is no defense to intentional trespass. Cassinos v. Union Oil Co. of California, 14 Cal. App. 4th 1770, 1780 (1993).

As INTEL established in its moving papers, it owns the computer systems that received HAMIDI's e-mails. True Decl. in Support of Summary Judgment at 1-2. HAMIDI does not dispute this element.

A. HAMIDI Intermeddled With INTEL's Property And Caused INTEL Injury.

Disputing both the intermeddling and injury elements of   INTEL's motion, HAMIDI claims that INTEL suffered no harm from his trespasses. The INTEL internal documents that HAMIDI attached to his opposition declaration, however, attest to the injury he caused. HAMIDI cites to a 1996 internal INTEL document for the proposition that INTEL could easily have blocked his messages. HAMIDI Decl. in Support of Opposition Ex. A. In fact, that document reveals that INTEL's Internet e-mail gateway servers require from two to twenty-four hours to block each new address that HAMIDI could use. INTEL chased that tail for almost two years prior to filing this action, blocking each new address that HAMIDI used, only to have him use a different one the next time. True Decl. in Support of Motion for Summary Judgment at 4.1 The diversion of technology personnel to the address-blocking effort is a concrete harm caused by HAMIDI. The trespass to chattels tort has no requirement that a party even attempt to block access by a trespasser, much less continue that effort for almost two years before seeking relief.

Other INTEL documents that HAMIDI submitted with his opposition support INTEL's factual assertions that HAMIDI's messages caused consternation and bewilderment among INTEL's employees, and that INTEL management spent considerable effort dealing with employee questions raised by HAMIDI's mass emails. See, e.g., HAMIDI Decl. in Support of Opposition Ex. A, C-1. HAMIDI has never attempted to deny that his e-mail caused INTEL a loss of employee productivity. True Decl. in Support of Motion for Summary Judgment at 12. HAMIDI also cannot contest the additional burden that his e-mail caused for INTEL Internet Connectivity Engineering personnel. Id. at 15; Sedayao Decl. in Support of Motion for Summary Judgment at 2. In short, HAMIDI cannot contest that his trespasses harmed INTEL.

I Among the return addresses HAMIDI used in his e-mails to INTEL were redeploy@foothill.net (Sept. 2, 1998 e-mail), toldu@mistic.net (Mar. 5, 1998 e-mail), and face@calweb.com (Feb. 17, 1997 e-mail). HAMIDI's address changing demonstrates the futility of INTEL's efforts to use self-help measures to block his e-mail campaign.

B. HAMIDI Mischaracterizes The Caselaw To Add Elements To The Tort Of Trespass To Chattels.

With the elements of trespass to chattels as set forth in Thrifty-Tel difficult for HAMIDI to contest, HAMIDI's defense turns on rewriting the elements of the tort to exclude the conduct in which he engaged. Thus, HAMIDI attempts to limit Thrifty-Tel to the precise facts of that case, and confuses the trespass to chattels and fraud issues in Thrifty-Tel. Moreover, HAMIDI attempts to ascribe a physical damage requirement to trespass to chattels. HAMIDI's efforts to evade INTEL's tort claim by raising the legal bar are unavailing.

Contrary to HAMIDI's argument, the trespass to chattels holding in ThriftyTel did not turn on whether the network was overloaded or whether the computers were actually damaged. Nor did it turn on the entirely separate issue of the defendants' intent to defraud. Rather, Thrifty-Tel stands for the general proposition that electronic signals are "sufficiently tangible to support a trespass cause of action." Id. at 1566-67. As the court explained, no substantial interference with the computers in question is necessary; mere intermeddling with use of personal property amounts to a trespass to chattels. Id.

Although HAMIDI disputes the degree of intermeddling that occurred, HAMIDI cannot deny that he intruded into INTEL's computer network with his email messages; after all, those messages showed up in the e-mail in-box of tens of thousands of INTEL computer users 2. HAMIDI says that he sent the messages to INTEL employees rather than INTEL or INTEL management, but that is entirely beside the point. The computers in question are INTEL's and the employees _________________________________________________________________________

2 HAMIDI also cites an INTEL document to show that there was no "security breach" from his first e-mail. INTEL does not claim, however, that HAMIDI breached INTEL's computer security (as opposed to address blocking) measures, and such a claim is not necessary to its trespass to chattels cause of action. _________________________________________________________________________

INTEL's motion also relied in part on CompuServe, in which the court applied the general proposition in Thrifty-Tel to the specific question of unauthorized e-mail. CompuServe, Inc. v. Cyber Promotions, Inc., 962 F. Supp. 1015, 1021 (S.D. Ohio 1997). HAMIDI attempts to distinguish CompuServe as only applying to commercial e-mail and claims that CompuServe requires actual damage. The central holding of CompuServe, however, was that unwanted e-mail can represent a trespass to chattels, citing Thrifty-Tel. Id. at 1021-22. HAMIDI ignores the plain text of the decision: "intermeddling is actionable even though the physical condition of the chattel is not impaired." Id. at 1022 (quoting Restatement Second of Torts § 218 cmt. h).

C. INTEL Did Not Consent To  HAMIDI's E-mails

Although HAMIDI is not explicit on the point, he seems to be arguing that INTEL consented to the receipt of his e-mails. The CompuServe court found that the defendants' e-mails physically invaded the plaintiff's computers after a demand to cease. Id. at 1027. Like HAMIDI, the defendants in CompuServe pointed to some nebulous theory of consent based on CompuServe's business decision to connect to the Internet. The CompuServe court held that CompuServe's connection to the Internet did not represent consent to trespass, and even if it did, the defendants received notice that any conceivable consent was clearly revoked. Id. at 1024-25. Here, HAMIDI can show no consent in the first instance. INTEL never published its employees' e-mail addresses and never implied that its employees were open to receiving e-mail from the public. True Decl. in Support of Summary Judgment at 2. Moreover, INTEL clearly demanded that HAMIDI cease and desist.

CompuServe thus disposes of HAMIDI's contention that the configuration of INTEL's Internet connection is a material fact. It did not matter there that CompuServe connected to the Internet to receive e-mails, and it does not matter here. HAMIDI took the affirmative step of transmitting tens of thousands of emails to INTEL. INTEL, like most companies, non-profit organizations, and governmental agencies today, connects to the Internet for a host of business reasons that have nothing to do with HAMIDI. His argument amounts to a demand that INTEL entirely disconnect from the Internet or remain subject to his e-mail blitzes.

II. INTEL'S COMPUTER SYSTEM IS PRIVATE PROPERTY AND DOES NOT CONSTITUTE A PUBLIC FORUM

HAMIDI also implies, again without arguing the point directly, that INTEL has opened up its computer networks to outsiders and thereby created a public forum in which his speech is protected. HAMIDI relies heavily on the fact that INTEL's computer policy allows its employees reasonable personal use of e-mail.3 HAMIDI's argument is implausible on its face. If adopted, it would mean that employers would have to prohibit all personal use by employees in order to avoid creating a public forum and to permit control over mass e-mails from outside the company. Indeed, HAMIDI's public forum argument would not only bar this Court from assisting INTEL; it would also bar INTEL from self-help measures such as blocking sites INTEL concludes are inappropriate. It would also mean that not only HAMIDI, but any outsider, could send e-mails en masse to INTEL's computers.

INTEL's computer networks, of course, are not a public forum. Indeed, HAMIDI cites no case in support of his argument. America Online, with its far

_________________________________________________________________________

3 HAMIDI appears to argue that he is a beneficiary of this policy, and that by allowing its employees reasonable personal use, INTEL has tied its own hands in dealing with him. HAMIDI, of course, is not an INTEL employee; nor is he an intended thirdparty beneficiary of the policy. Moreover, it is a matter of INTEL's business discretion how it writes its e-mail policies, and INTEL is entitled to rely on its employees' common sense in determining what is reasonable personal use in the business context. _________________________________________________________________________

more open character than INTEL's networks, was held not to be a public forum in Cyber Promotions. Cyber Promotions, Inc. v. America Online, Inc., 948 F. Supp. 436, 441-42 (E.D. Pa. 1996) (finding that AOL was not a state actor, that AOL's email servers were not public fora and rejecting an argument that the First Amendment provides a party some right to send unsolicited e-mail to a proprietary computer system); see also CompuServe, 962 F. Supp. at 1026-27 (holding that the First Amendment provided no defense for the defendants' mass e-mail trespass); Perry Educ. Ass'n v. Perry Local Educators' Ass'n, 460 U.S. 37, 47, 49, 55 (1983) (holding that teacher mailbox system of a public school is not a public forum, that government actors can permissibly allow selective access to internal communication systems, and that the use of an instrumentality for communication, even in a government setting, does not convert it into a public forum); Loving v. Boren, 956 F. Supp. 953, 955 (W.D. Okla. 1997) (stating that public and private actors have the right to exclude individuals from accessing their property in the context of computer and Internet services).

Even under the California Constitution, HAMIDI would have to show that INTEL has affirmatively opened up its property for general use by the public. Recent California cases have interpreted this requirement strictly. See Bank of Stockton v. Church of Soldiers of the Cross of Christ of Cal., 44 Cal. App. 4th 1623 (1996) (affirming preliminary injunction prohibiting solicitation of religious donations on bank property where the property was open to the public only for specific banking-related activities); Feminist Women 's Health Center v. Blythe, 32 Cal. App. 4th 1641, 1659-61 (1995) (affirming permanent injunction against trespass on private property to express anti-abortion views); Allred v. Harris, 14 Cal. App. 4th 1386 (1993) (affirming permanent injunction against picketing on a private parking lot and holding California law does not force property owners to allow unwanted expressive activity on private property where the public is not openly invited); v. Shawley.  232 Cal. App. 3d 1489, 1500-02 (1991) (affirming a preliminary injunction preventing picketing on a private parking lot not held open to the general public); Planned Parenthood of San Diego and Riverside Counties v. Wilson, 234 Cal. App. 3d 1662, 1671-73 (1991) (affirming preliminary injunction against trespass in the face of free speech claims).

HAMIDI cannot establish that INTEL has opened up its computer networks to the public, and INTEL certainly has done nothing to suggest that its networks are some sort of free speech zone where anything goes.

III. AN INJUNCTION AGAINST HAMIDI TO PREVENT TRESPASS ON INTEL'S PROPERTY IS NOT STATE ACTION

Apparently seeking another route to turning this trespass case into a constitutional dispute, HAMIDI argues that this case involves state action. An injunction by this Court preventing trespass on INTEL's private property, however, is not state action.

The fundamental problem with HAMIDI's argument is that INTEL is asking the Court to do no more than protect its private property rights by stopping HAMIDI from sending messages to its computers. The Court's assistance with the protection of these property rights is not state action, and it does not turn , HAMIDI's e-mails into constitutionally protected speech. As the U.S. Supreme Court noted, "[T]his Court has never held that a trespasser or an uninvited guest may exercise general rights of free speech on property privately owned and used nondiscriminatorily for private purposes only." Lloyd Corp. v. Tanner, 407 U.S. 551, 568 (1972). The Lloyd Court, in reversing the lower courts in favor of the property owner, stated that rights of free speech are limitations only on state actions but not on private property owners. Id. at 567. The implication of this decision is that a trespass action (perhaps outside the context of racial segregation), even though it invokes judicial authority, is not state action.

In Hudgens v. NLRB, 424 U.S. 507 (1975), the Court held that  laborers had no First Amendment right to enter a shopping center to picket a store. The Hudgens Court concluded that free speech simply played no part in such circumstances. Id. at 521. Again, the implication of this decision is that enforcement of trespass laws does not invoke the state action doctrine.

The CompuServe court explicitly ruled on this point, stating:  In the present action, CompuServe  is a private company. Moreover, the mere judicial enforcement of neutral trespass laws by the private owner of property does not alone render it a state actor.

962 F.Supp. at 1026. See also International Soc'y for Krishna Consciousness, Inc. v. Reber, 454 F. Supp. 1385, 1388-89, 1389 n.1 (C.D. Cal. 1978).

CONCLUSION

All material facts in this case are undisputed and no triable issue of material fact remains. Under California law, HAMIDI's e-mail invasion of INTEL's proprietary computer system represents a trespass to chattels. There is no consent or other right that privileges this trespass. INTEL is entitled to judgment as a matter of law. INTEL requests that this Court grant INTEL summary judgment against HAMIDI.

Dated: April 14, 1999

LINDA E. SHOSTAK

MICHAEL A. JACOBS

KURT E. SPRINGMANN

MORRISON & FOERSTER LLP

By:

Michael A. Jacobs

Attorneys for Plaintiff

INTEL CORPORATION

sf-67 1379

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Intel's Motion For Summary Judgment

MICHAEL A. JACOBS (BAR No. 111664)

LINDA E. SHOSTAK (Bar No. 64599)

MORRISON & FOERSTER LLP

425 Market Street

San Francisco, California 94105-2482

Telephone: (415)268-7000

Attorneys for Plaintiff

INTEL CORPORATION

 

SUPERIOR COURT OF THE STATE OF CALIFORNIA

COUNTY OF SACRAMENTO

 

INTEL CORPORATION,	No. 98AS05067
Plaintiff
	Department: 53
v.
	NOTICE OF MOTION AND
	INTEL CORPORATION'S
KOUROSH KENNETH HAMIDI and	MOTION FOR SUMMARY
FACE - Intel, a purported California	JUDGMENT
nonprofit organization,
Defendant

Opposition Due:

Defendants. Moving Party Reply:

Hearing Date: January 11, 1999

Trial Date: Not set

 

NOTICE IS HEREBY GIVEN that on January 11, 1999 at 9:00 a.m., or as soon thereafter as the matter may be heard, in Department No. 53 of the above entitled court, plaintiff INTEL CORPORATION ("INTEL"), by its undersigned attorneys, will move this Court for summary judgment in favor of INTEL and against KOUROSH KENNETH HAMIDI ("HAMIDI") because HAMIDI committed trespass to INTEL's chattels by sending electronic mail to addresses on the INTEL proprietary computer systems.

This motion is made upon the grounds that there is no triable issue of material fact as to the summary judgment and therefore INTEL is entitled to such judgment as a matter of law. The motion is based upon the accompanying separate statement of undisputed facts, upon all other papers, records and documents on file herein, and upon evidence, oral and documentary, to be presented at the hearing on this motion and for the reasons set forth in the accompanying Memorandum of Points and Authorities.  Pursuant to Local Rule 3.04, the court will make a tentative ruling on the merits of this matter by 2:00 p.m., the court day before the hearing. To receive the tentative ruling, call the department in which the matter is to be heard at 448-8239 (Department 53). If you do not call the court and opposing party by 4:30 p.m. the court day before the hearing, no hearing will be held.

 

Dated: December 9, 1998

LINDA E. SHOSTAK

MICHAEL A. JACOBS

MORRISON & FOERSTER

By:

(Signatur of Michael A. Jacobs)

Michael A. Jacobs

Attorneys for Plaintiff

INTEL CORPORATION

Morrison & Foerster for collection.

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Intel's Support For Its Summary Judgment Motion

MICHAEL A. JACOBS (BAR No. 111664)

LINDA E. SHOSTAK (Bar No. 64599)

MORRISON & FOERSTER

425 Market Street

San Francisco, California 94105-2482

Telephone: (415)268-7000

Attorneys for Plaintiff

INTEL CORPORATION

 

SUPERIOR COURT OF THE STATE OF CALIFORNIA

COUNTY OF SACRAMENTO

 

INTEL CORPORATION,	No. 98AS05067
Plaintiff
	Department: 53
v.
	MEMORANDUM OF POINTS
	AND AUTHORITIES FOR
KOUROSH KENNETH HAMIDI and	INTEL'S MOTION FOR
FACE - Intel, a purported California	SUMMARY JUDGMENT
nonprofit organization,
Defendant

Opposition Due:

Defendants. Moving Party Reply:

Hearing Date: January 11, 1999

Trial Date: Not set

Plaintiff INTEL CORPORATION ("INTEL") moves the Court for summary judgment against defendant KOUROSH KENNETH HAMIDI ("HAMIDI") for trespass to chattels effected by HAMIDI sending unauthorized and unwelcome electronic mail ("e-mail") to addresses on INTEL's proprietary computer systems.

INTRODUCTION:

HAMIDI is a former INTEL employee who was terminated from his employment involuntarily. In 1996, HAMIDI participated in the creation of an organization named AXE-INTEL, consisting of a group of former INTEL employees, many of whom had filed claims against INTEL. The organization was later renamed FACE-INTEL. HAMIDI has identified himself as being an officer of this organization and its designated spokesman. Indeed, HAMIDI is the only known spokesperson for the group. Among its various activities, which are primarily directed at challenging INTEL personnel policies, FACE-INTEL maintains a World Wide Web site on which HAMIDI is identified as a contributor, spokesperson and webmaster. (INTEL's Statement of Undisputed Material Facts

1.)  As a part of HAMIDI's campaign against INTEL, HAMIDI and FACE INTEL have sent e-mail to large numbers of current INTEL employees utilizing addresses on INTEL's proprietary computer systems. (UF 2-4.) HAMIDI admits to three of these mass e-mails, including December 1996,  March 1997 and April 1997. (UF 2a, 2c, 2d.) HAMIDI sent three other e-mails to the INTEL systems in February 1997, March 1998 and September 1998. (UF 11 2b, 2e, 2f.) These e-mails by HAMIDI are uninvited, disruptive and adversely affect employee productivity. (UF 7.) Employees contact computer systems support personnel questioning why they are receiving unrequested e-mails and asking to be blocked from further e-mails. (UF 7.) HAMIDI is aware of the disruption caused by his e-mail, as evidenced by a copy of the internal INTEL briefing posted on Defendants' web site. (UF 6.) Computer systems support personnel spend significant amounts of time attempting to block or remove HAMIDI's unauthorized and unrequested e-mails from the computer systems. (UF 8.) This past spring, INTEL requested that HAMIDI and FACE-INTEL cease and desist in e-mails to the INTEL proprietary computer systems. (UF 5.) Indeed, even before this request, HAMIDI had long known that his mass e-mail INTEL's Statement of Undisputed Material Facts is herei nafter referred to as "UF." entries into INTEL's proprietary computer system were unwelcome. To avoid detection and the various preventive measures that can block unauthorized e-mail, HAMIDI sent e-mails in the dead of night and from different computers to avoid blocking by INTEL. (UF 6.) In a letter dated March 30, 1998 to INTEL's counsel, Linda Shostak, HAMIDI admitted responsibility for the mass e-mails, but refused to stop e-mail directed to INTEL's proprietary e-mail computer system. (UF 5.) In September of this year, HAMIDI and FACE-INTEL again sent e-mail to addresses on INTEL's proprietary computer systems by the tens of thousands. (UF I 2f.) Analysis of HAMIDI's September 1998 e-mail indicates that it was directed to approximately 29,000 current employees on the INTEL proprietary computer systems. (UF 4.) 3 On October 7, 1998, INTEL filed this action for trespass to chattels.

Following INTEL's motion filed on October 22, 1998, this Court granted a preliminary injunction against HAMIDI prohibiting further e-mails to INTEL.

(Preliminary Injunction Order dated November 24, 1998 attached as Exhibit 1.)

INTEL now moves the Court for summary judgment in favor of INTEL and against HAMIDI for trespass to chattels.

ARGUMENT:

1. UNDER CALIFORNIA LAW, HAMIDI'S E-MAIL. INTRUSIONS INTO THE INTEL PROPRIETARY COMPUTER SYSTEMS CONSTITUTE A TRESPASS TO CHATTELS.

Under California law, unconsented access to a computer system constitutes a trespass to chattels. Thrifty-Tel, Inc. v. Bezenek, 46 Cal. App. 4th 1559 (1996).

In Thrifty-Tel, the plaintiff operated a long-distance telephone service. The defendfdants accessed the plaintiff's computer systems without authorization. The trial court held the defendants liable for conversion and fraud. On appeal, the court affirmed the trial court but correctly characterized the tort proven as a trespass to chattels. The Thrifty-Tel court discussed the evolution of trespass to chattels into the computer era. It noted that under the Restatement Second of Torts section 217(b), intermeddling with the  property in possession of another amounts to a trespass to chattels. Id. at 1567 n.8. The court held that the defendants' electronic signals directed at the plaintiff's computer systems supported an action for trespass to chattels. Id. at 1566-67 and 1566 n.6.

The reasoning of Thrifty-Tel was extended to e-mail systems in CompuServe, Inc. v. Cyber Promotions, Inc., 962 F. Supp. 1015 (S.D. Ohio 1997). In that case, the court enjoined the defendant from sending unauthorized e-mail onto the plaintiff's proprietary computer systems. The CompuServe court found that the defendant's electronic signals, comprising the e-mail, physically invaded the plaintiff's computers after a demand to cease. Id. at 1027 (citing the Restatement Second of Torts section 217(b)). Damage to the plaintiff, including damage to goodwill and reputation, constituted irreparable harm. Id. at 1027-28.

In America Online, Inc. v. IMS, 1998 U.S. Dist. LEXIS 17437 at *4-*8 (E.D. Va. October 29, 1998), the court granted summary judgment to plaintiff America Online where the undisputed facts established a trespass to chattels based on e-mail sent by the defendants onto the plaintiff's proprietary computer system. The America Online court based its trespass to chattels holding primarily on the reasoning in CompuServe. Id. at *4-*8.

Other courts in California have recognized the trespass to chattels action to protect proprietary computer systems from intrusion. Recently, a federal district 2 In 1997, a California Superior Court enjoined a defendant from sending unsolicited e-mail onto the plaintiff's proprietary computer system. Earthlink Network, Inc. v. Cyber Promotions, Inc. (Super. Ct. L.A. County, 1997, No. BC167502) order issuing injunction filed May 21, 1997 court in California enjoined a defendant's use of an Internet provider's e-mail system, in part based on the theory of trespass to chattels. Hotmail Corp. v. Van Money Pie, Inc., No. C98-20064JW, 1998 U.S. Dist. LEXIS 10729 at *22-*24 (N.D. Cal. April 16, 1998) (citing Thrifty-Tel, Inc. v. Bezenek, 46 Cal. App. 4th 1559 (1996)).

Here, HAMIDI's access to INTEL's computer system by way of his uninvited e-mail messages, and the associated electronic signals that comprise them, was unauthorized and unwelcome. INTEL demanded that HAMIDI cease and desist, but he refused this demand. HAMIDI's e-mail to INTEL's computers, therefore, constitutes a trespass to chattels under California law.

HAMIDI HAS NO FIRST AMENDMENT DEFENSE FOR HIS TRESPASS AGAINST INTEL:

The case law is clear that HAMIDI does not have a First Amendment right to express his views by trespassing on INTEL's private e-mail system. To be-- sure the California Constitution may provide more expansive rights of free speech than the First Amendment to the United States Constitution. In Robins v. Pruneyard Shopping Ctr., 23 Cal. 3d 899 (1979), the Court held that under the California Constitution shopping centers that invited entry by the public could not prevent solicitation of signatures on political referendums on shopping center premises.

California law does not extend those rights, however, to a forum where the property owner does not open up his property to the public in general. Allred v. Shawley, 232 Cal. App. 3d 1489, 1500-02 (1991) (affirming a preliminary injunction preventing picketing on a private parking lot not held open to the general public); see also Allred v. Harris, 14 Cal. App. 4th 1386 (1993) (affirming permanent injunction against picketing on a private parking lot and holding California law does not force property owners to allow unwanted expressive activity on private property where the public is not openly invited); Bank of Stockton v. Church of Soldiers of the Cross of Christ of Cal., 44 Cal. App. 4th 1623 (1996) (affirming preliminary injunction prohibiting solicitation of religious donations on bank property where the property was open to the public only for specific banking related activities).

The nature of the forum in free speech claims is of great importance. Indeed, even in cases that consider First Amendment claims against government actors, courts deny open access when the forum is not a traditional public forum.

The teacher mailbox system in a public school is not a public forum that can be freely accessed when it is not generally held open to the public at large. Perry Educ. Ass'n v. Perry Local Educators' Ass'n, 460 U.S. 37 (1983). Likewise, the computer system and Internet services of a state university are not a public forum. Loving v. Boren, 956 F. Supp. 953, 955 (W.D. Okla. 1997). INTEL's proprietary e-mail system is for company business and is not open to the general public.

INTEL has specific policies that limit use of the system to company business and reasonable personal use. (UF 9.) Therefore, INTEL's proprietary e-mail- System does not even remotely approach the public forum open to expressive activity.

The CompuServe court stated that the First Amendment provided no defense for the defendant's mass e-mailings in a similar case of trespass to chattels. CompuServe, 962 F. Supp. at 1027. See also Cyber Promotions, Inc. v. America 19 Online, Inc., 948 F. Supp. 436, 445 (E.D. Pa. 1996) (holding that the First Amendment provides a party no right to send unsolicited e-mail to a proprietary computer system).

Likewise, HAMIDI has no First Amendment right to express his views by trespassing on INTEL's private e-mail system.

HAMIDI'S ACTIVITIES ARE NOT PROTECTED UNDER 25 CCP § 527.3:

In opposition to INTEL's motion for preliminary injunction, HAMIDI unsuccessfully advanced a statutory argument under Cal. Civ. Proc. Code § 527.3. HAMIDI does not fall within the protection accorded by CCP § 527.3 for three distinct reasons. FACE-INTEL is not a "recognized employee organization" and HAMIDI cannot make any viable argument that FACE-INTEL is such an organization. This is not a "labor dispute." And, even if HAMIDI did meet these first two hurdles, HAMIDI's activities are outside the lawful activities protected by § 527.3. A. HAMIDI cannot claim protection under § 527.3 because FACE-INTEL is not a "recognized employee organization."

The Moscone Act, codified in Cal. Civ. Proc. Code § 527.3, was passed to prevent court interference in disputes between employers and "recognized employee organizations." § 527.3(a); Sears, Roebuck & Co. v. San Diego County Dist. Council of Carpenters, 25 Cal. 3d 317, 323 (1979). While this term is not defined in § 527.3 or cases interpreting that section, Cal. Gov. Code § 3501, which is also about labor law issues, distinguishes between "employee organizations" and "recognized employee organizations." That distinction turns on formal acknowledgement of the organization as a representative of the employees. Id. In the private sector, formal acknowledgement of an employee organization typically occurs through procedures dictated by federal law, such as union elections under the National Labor Relations Act. HAMIDI does not, and indeed cannot, claim any formal acknowledgement of FACE-INTEL. Therefore, HAMIDI cannot come within the ambit of § 527.3. B. Defendants cannot claim protection under § 527.3 because they are not involved in a "labor dispute." The Moscone Act was modeled after the Norris-LaGuardia Anti-Injunction Act, codified at 29 U.S.C. § 101 et seq. M Restaurants, Inc. v. San Francisco Local Joint Executive Bd. of Culinary Workers, Bartenders, Hotel, Motel and Club Service Workers, 124 Cal. App. 3d 666, 674 (1981). "The Norri s- LaGuardia Act ... expresses a basic policy against the injunction of activities of labor unions." Burlington N. R.R. Co. v. Brotherhood of Maintenance of Way Employees, 481 U.S. 429, 437 (1987) (quoting International Ass'n of Machinists v. Street, 367 U.S. 740, 772 (1961)) (emphasis added). Courts have held that six factual settings give rise to a "labor dispute" as that term is used in the Norris-LaGuardia Act. I Theodore Kheel, Labor Law § 4.03[3] (Release No. 92 1998). These settings are:

(1) A union work stoppage and strike in breach of a collective bargaining agreement.

(2) A controversy between a labor union and an employer over the question of whether the union is to be recognized 10 as the sole collective bargaining agent for the employees.

(3) Union picketing of an employer's premises for the 12 purpose of organizing a "closed shop."

(4) A disagreement over a cost of living provision.

(5) Picketing a bankrupt employer to compel benefit payments.

(6) Union work stoppage as a political protest. Id. (citations omitted) (emphasis added). The e-mail activity of HAMIDI doe's not even remotely res emble the protected strikes and picketing on behalf of recognized employee organizations that underlies § 527.3. C. HAMIDI's activities are not protected by § 527.3 under the standard announced in Sears. Even assuming that § 527.3 applied to FACE-INTEL, HAMIDI would fail to meet the standard for protection under § 527.3 announced in Sears. The Sears court stated that the clear legislative intent of the Moscone Act, codified as § 527.3, was to insulate from injunction "all union activity which,.under prior California decisions, has been declared to be 'lawful activity."' Sears, 25 Cal. 3d at 323. In Sears, the court held that the peaceful picketing on Sears' sidewalk outside the store was lawful based on prior California law and could not be enjoined. Id. In contrast, HAMIDI cannot point to any decision that makes his activities legal under California law existing at the 1979 enactment of § 527.3. Clearly, no case law then extant condoned trespass to chattels through mass e-mail. Under the Sears test, HAMIDI is not subject to protection under § 527.3.

IV. INTEL IS ENTITLED TO SUMMARY JUDGMENT BECAUSE ALL MATERIAL FACTS ARE UNDISPUTED AND INTEL IS ENTITLED TO JUDGMENT AS A MATTER OF LAW:

This case presents no triable issues of material fact. Th e thrust of HAMIDI's defense is that while he has committed the acts that INTEL argues constitute a trespass to chattels, he is the beneficiary of a privilege or defense to INTEL's trespass claim. As discussed above, HAMIDI has no such privilege or defense. HAMIDI admits all material facts:

HAMIDI admits sending three of the mass e-mails in question. (UF 2a, 2c, 2d.) Undisputed evidence demonstrates that HAMIDI sent the other mass e-mails alleged by INTEL. (UF 2b, 2e, 2f.) HAMIDI admits knowing that the e-mail was unwelcome by INTEL. (UF16.) HAMIDI admits that INTEL  demanded that he cease and desist and that he 24 refused that demand. (UF 5.) In short, HAMIDI admits all issues of material fact. No triable issues of material fact remain and INTEL is entitled to judgment as a matter of law.

CONCLUSION:

All material facts in this case are undisputed and no triable issue of material fact remains. Under California law, HAMIDI's e-mail invasion of INTEL's proprietary computer systems represents a trespass to chattels. Consent or other right does not privilege this trespass. INTEL is entitled to judgment as a matter of law. INTEL requests that this Court grant INTEL summary judgment against HAMIDI.

Dated: December 9, 1998

LINDA E. SHOSTAK

MICHAEL A. JACOBS

MORRISON & FOERSTER LLP

 

By:

(Signature of Michael A. Jacobs)

Michael A. Jacobs

Attorneys for Plaintiff

Intel's Motion For Summary Judgment