|MICHAEL A. JACOBS (BAR No. 111664)|
|LINDA E. SHOSTAK (Bar No. 64599)|
|MORRISON & FOERSTER|
|425 Market Street|
|San Francisco, California 94105-2482|
|Attorneys for Plaintiff|
|MEMORANDUM OF POINTS|
|AND AUTHORITIES FOR|
|KOUROSH KENNETH HAMIDI and||INTEL'S MOTION FOR|
|FACE - Intel, a purported California||SUMMARY JUDGMENT|
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.
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.
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 (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.
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
(Signature of Michael A. Jacobs)
Michael A. Jacobs
Attorneys for Plaintiff
Intel's Motion For Summary Judgment
Intel's Proposal 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
The motion of INTEL CORPORATION ("INTEL") for summary judgment came on for hearing before this Court in Department 53, Honorable John R. Lewis, Judge Presiding, on January 11, 1999. INTEL was represented by Michael A. Jacobs, Esq. of Morrison & Foerster LLP, attorneys of record for INTEL and Kourosh Kenneth Hamidi for defendant KOUROSH KENNETH HAMIDI. After full consideration of the evidence, the separate statements of each party and points and authorities submitted by both parties, as well as parties' oral argument, it appears, and the court finds, that there is no triable issue of material fact in this action and that INTEL is entitled to summary judgment as a matter of law for the following reasons:
INTEL CORPORATION, No. 98AS05067 Plaintiff Hearing Date: January 11, 1999 v. Hon. John R. Lewis Department: 53 KOUROSH KENNETH HAMIDI and [PROPOSED] ORDER FACE - Intel, a purported California GRANTING SUMMARY nonprofit organization, JUDGMENT Defendant
1. The undisputed facts show that HAMIDI comitted trespass to INTEL's chattels by intentional sending electronic mail ("e-mail") to INTEL's proprietary computer systems.
2. The undisputed facts show that HAMIDI's conduct was not authorized by consent or ratified by INTEL.
3. HAMIDI, admitting all material issues of fact, presents no evidence that raises a triable issue of material fact.
4. HAMIDI's trespass is without legal excuse or privilege.
IT IS THEREFORE ORDERED that INTEL's motion for summary judgment is GRANTED and that judgment shall be entered forthwith in favor of INTEL and against HAMIDI.
Honorable John R. Lewis
Judge of the Superior Court