KENNETH HAMIDI is a former INTEL employee who was injured in an automobile accident while returning from a business trip on behalf of INTEL in September 1990. At the time of the accident, KENNETH HAMIDI was a Senior Customer Quality and Reliability Engineer ('*CQE") in INTEL's Automotive Group.

KENNETH HAMIDI remained at work 18 months after his accident, until his worsening physical condition forced him to leave his employment at the advice of INTEL's doctors. KENNETH HAMIDI left his employment on a medical leave of absence on  January 27, 1992. KENNETH HAMIDI was out on medical leave until his termination by INTEL on April 17, 1995. Although KENNETH HAMIDI was terminated involuntarily, he was not terminated for cause.

(1) During the civil litigation KENNETH HAMIDI took the deposition of  Kirby Dyess, who was the Director of  Human Resources for INTEL and the executive personally responsible for the termination of KENNETH HAMIDI. In that deposition Kirby Dyess acknowledged that KENNETH HAMIDI was still eligible for rehire.  ]

(2) Kirby Dyess also acknowledged that INTEL had violated its own internal policies in terminating HAMIDI prior to the resolution of his workers compensation case. Ms. Dyess refused to answer any questions that would explain why normal procedures were not followed in the termination of KENNETH HAMIDI.

(3) KENNETH HAMIDI obtained an award for physical injury. INTEL does not dispute that fact, as evident by the DECLARATION OF LINDA E. SHOSTAK IN SUPPORT OF THE MOTION FOR PRELIMINARY INJUNCTION, page 1, line 12-13. However, INTEL has refused and continues to refuse to pay any of the award for physical injury to this day, despite their acknowledgment in their moving papers of KENNETH HAMIDI's right to recovery.

(4) In 1996 KENNETH HAMIDI, in conjunction with current employees, and past employees of INTEL, participated in the creation of AXE-INTEL, later renamed FACE-INTEL. FACE-INTEL was formed to provide a medium for INTEL employees to air their grievances and concerns over employment conditions at INTEL. FACE-INTEL provides an extremely important forum for employees within an international corporation to communicate via a web page on the Internet and via electronic mail, on common labor issues, that, due to geographical and other limitations, would not otherwise be possible. The means employed by FACE-INTEL were chosen as those needed to reach INTEL employees.
 
 

INTEL alleges that HAMIDI has intruded onto INTEL's private e-mail system, and that such an intrusion constitutes a trespass to chattels, thereby rendering the freedom of speech defense inappropriate. This argument is fallacious and HAMIDI will address the authorities cited by INTEL in dispelling this argument.

INTEL alleges that HAMIDI committed a trespass to chattels as defined in Thrifty-Tel v Beznek, 46 Cal. App. 4th 1559 (1996). HAMIDI has not committed a trespass to chattels, as set forth in Thrifty-Tel. In Thrifty-Tel the defendant used a special electronic device to dial thousands of numbers on plaintiff's telephone system in an effort to obtain a code sequence to use to make free telephone calls, thereby defrauding the telephone company. The court stated that the barrage of dialing into plaintiff's admittedly small telephone switching system overloaded the system, and thereby caused an interference with the use of that system.  The plaintiff's telephone system was overloaded in responding to defendant's calls.  Hence, the trespass to chattels. There is no correlation between Thrifty-Tel and this case.

First, this case deals with a labor dispute between employees and employer. Second, in this case the burdens associated with receiving the e-mails stemmed solely from INTELs' efforts to keep employment-related information out of the hands of its employees. HAMIDI's e-mails to INTEL employees did not affect, overload, or otherwise burden INTEL's e-mail system. In fact, HAMIDI's two e-mails, on each occasion were directed at less than 40% of INTEL's total employees. INTEL blocked many of those e-mails, resulting in even fewer e-mails from being delivered than attempted. Even by analogy to Thrifty-Tel, the e-mailings resulted in less than one "call" to every four INTEL employees. In addition, the e-mailings were conducted at night, when the server was inactive, in order to avoid burgeoning the server and avoid blocking by INTEL. HAMIDI told all recipients that they could be removed from any future e-mailings by simply requesting that their name be deleted. HAMIDI has received only 450 requests for deletion, and has deleted those recipients. INTEL has over 65,000 employees.

INTEL cites CompuServe Inc v Cyber Promotions, Inc. 962 F. Supp. 1015 (S.D.  Ohio 1997) to stand for the proposition that the first amendment provides a party no right to send unsolicited e-mail to a proprietary computer system. CompuServe  is critically distinguishable from this case. Cyber Promotions asked the court to declare that Cyber Promotions had a right under the first amendment to force AOL to provide e-mail access to Cyber's commercial and competitive e-mailings. The court properly declined to impose the affirmative duty upon AOL to aid its competitors.   HAMIDI does not ask this court to prevent INTEL from attempting to block the flow of information from HAMIDI to INTEL's employees.

INTEL alleges that the e-mails addressed by HAMIDI are "private," stating directly that HAMIDI "trespassed" on INTEL's computer systems and suggesting that HAMIDI purloined a list of those e-mail addresses from INTEL. Both allegations are false and misleading.

HAMIDI was given a list of INTEL employee names, available to all INTEL employees, and used that list of names to create e-mail addresses. HAMIDI addressed the e-mail to the e-mail addresses that HAMIDI created, and sent them via the public forum of the Internet. At no time did HAMIDI use a code as in Thrifty-Tel, to break into a proprietary system, nor does HAMIDI ask the court to proclaim that INTEL sits in the position of a governmental body, as did Cyber Promotions in CompuServe Inc v Cyber Promotions, Inc.

INTEL, on the other hand, as an employer, asks this court to interject itself into an ongoing labor dispute between employer, employees, past employees, and order certain INTEL employees not to communicate via e-mail to other INTEL employees prior to a trial on the merits.  INTEL attempts to convince this court that the freedom of speech limitations placed on this court do not apply in cases where the message is presented on private property and not made available to the public. INTEL cites several cases in support of this proposition. INTEL fails to recognize that those cases dealt with limits placed on rights to free speech, which speech rights were provided by constitution. This case does not deal with speech rights provided only by way of the state and federal constitutions, but rather, rights provided by California statute. It is this critical distinction that makes INTEL's case authorities inapposite. California Code of Civil Procedure 527.3 explicitly decriminalized trespass in situations involving labor disputes.
 
 
 

INTEL has spent considerable effort to convince this court that HAMIDI's e-mailings are an intrusive trespass to INTEL's proprietary system. INTEL has also been mute as to the content of those e-mailings. It is abundantly clear that HAMIDI's efforts deal with disputes over labor issues, personnel matters, issues of ranking and rating, of layoffs and terminations. One look at the e-mails should convince the court that INTEL seeks to use the court to affect a protected labor dispute. Such a request is illegal under California law.
 
 

(1) Giving publicity to, and obtaining or communicating information regarding the existence of, or the facts involved in, any labor dispute, whether by advertising, speaking, patrolling any public street or any place where any person or persons may lawfully be, or by any other method not involving fraud, violence or breach of the peace.

(2) Peaceful picketing or patrolling involving any labor dispute, whether engaged in singly or in numbers.

(3) Assembling peaceably to do any of the acts specified in paragraphs (1) and (2) or to promote lawful interests.

(4) Except as provided in subparagraph (iv), for purposes of this section, "labor dispute" is defined as follows (i) A case shall be held to involve or to grow out of a labor dispute when the case involves persons who are engaged in the same industry, trade, craft, or occupation; or have direct or indirect interests therein; or who are employees of the same employer; or who are members of the same or an affiliated organization of employers or employees; whether such dispute is (a) between one or more employers or associations of employers and one or more employees or associations of employees; (b) between one or more employers or associations of employers and one or more employers or associations of employers; or (c) between one or more employees or associations of employees and one or more employees or associations of employees; or when the case involves any conflicting or competing interests in a "labor dispute" of "persons participating or interested" therein (as defined in subparagraph (i) A person or association shall be held to be a person participating or interested in a labor dispute if relief is sought against him or it, and if he or it is engaged in the same industry, trade, craft, or occupation in which such dispute occurs, or has a direct or indirect interest therein, or is a member, officer, or agent of any association composed in whole or in part of employers or employees engaged in such industry, trade, craft, or occupation.

(iii) The term "labor dispute" includes any controversy concerning terms or conditions of employment, or concerning the association or representation of persons in negotiating, fixing, maintaining, changing, or seeking to arrange terms or conditions of employment regardless of whether or not the disputants stand in the proximate relation of employer and employee.

(iv) The term "labor dispute" does not include a jurisdictional strike as defined in Section 1118 of the Labor Code.
 
 

(9) The parties dispute whether the picketing in the instant case constituted a criminal trespass under subdivisions (j), (k), or (l) of Penal Code section 602. We think it unnecessary to embark upon a detailed analysis of that section, for union activity which is authorized by state labor law constitutes an exception to the criminal trespass statutes. (See Agricultural Labor Relations Bd. v. Superior Court, supra, 16 Cal.3d 392, 421; Lane, supra, 71 Cal.2d 872 (city trespass ordinance); cf. In re Zerbe (1964) 60 Cal.2d 666 [36 Cal.Rptr. 286, 388 P.2d 182, 10 A.L. R.3d 8401 (construing Pen. Code, § 552.1.) In any event, the language of subdivision (b) of section 527.3 is explicit union activity protected by that subdivision is not only not subject to injunction but "shall be legal," language which precludes any ruling that such activity constituted a criminal trespass. As a specific statute regulating labor disputes, section 527.3 would prevail over the earlier and more general criminal trespass laws. (See Agricultural Labor Relations Bd. v. Superior Court, supra, 16 Cal.3d 392, 420.)

At oral argument the parties called our attention to an amendment to Penal Code section 602, subdivision (n). Under that amendment, effective January 1, 1979, a person does not violate subdivision (n) by refusing to leave property on the request of the owner, his agent, or the lawful possessor of the property, if the person is "engaged in lawful labor union activities which are permitted to be carried out on the property by the California Agricultural Labor Relations Act . . . or by the National Labor Relations Act." The parties recognize that this amendment merely codifies existing law; indeed union activity protected by state or federal law clearly does not violate any subdivision of Penal Code section 602.

INTEL seeks to use this court to silence HAMIDI and in so doing, improperly and unlawfully affect the outcome of  a labor dispute, as defined by CCP 527.3. HAMIDI's e-mails, addressing the terms and conditions of employment, pertain to controversies within the scope of CCP 527.3.

Trespass to chattels is statutorily moot, therefore, any preliminary injunction is improper.

INTEL's expenditures do not flow from the violation of any right held by INTEL. Rather, INTEL has expended efforts to stop the transmission of messages between its employees and HAMIDI in order to frustrate any success HAMIDI may have in providing a forum for employee grievances against INTEL.

INTEL's efforts demonstrate the attempts by an employer to limit its employees access to information that may be critical of INTEL as an employer. INTEL is not acting as the guardian of the interests of its employees and should not be empowered to determine what information they are permitted to access.

Secondly, the moving party must demonstrate that they will suffer more harm if the injunction is not issued when compared to the interim harm that the opposing will suffer if it is issued. (Cohen v. Board of Supervisors (1985) 40 C.3d 277, 286, 219 C.R. 467, 707 P.2d 840; IT Corp. v. Imperial (1983) 35 C.3d 63, 69, 70, 196 C.R. 715, 672 P.2d 121, infra, §358; Hart v. Cult Awareness Network (1993) 13 C.A.4th 777, 785, 16 C.R.2d 705; Choice-in-Education League v. Los Angeles Unified School Dist. (1993) 17 C.A.4th 415, 422, 21 C.R.2d 303; see also Voorhies V. Greene (1983) 139 C.A.3d 989, 995, i89 C.R. 132.) Public policy interests favor the free transmission of information, particularly in circumstances where there are ongoing labor disputes and the employer seeks the power of the court to prevent use of the only feasible forum for contacting employees across several continents. Society has a critical interest in the free flow of information. Virginia State Bd. of Pharmacy v Virginia Citizens Consumer Council (1976) 425 U.S. 748, 96 S.Ct. 1817.

In balancing the hardships, the trial court must exercise its discretion in favor of the party that is more likely to be injured by that exercise. (Family Record Plan v. Mitchell (1959) 172 C.A.2d 235, 242, 342 P.2d 10. INTEL's allegations of employee disruption and moral loss are belied by the fact that only 450 employees objected to the receipt of the information. INTEL's corporate interests appear to be adverse to those of their employees, For the reasons set forth HAMIDI respectfully requests this court to deny INTEL's motion for a preliminary injunction.

Dated November 12, 1998
 
 

(Signature of Kourosh Kenneth Hamidi)

KOUROSH KENNETH HAMIDI