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, HAMIDI was a Senior Customer Quality and Reliability Engineer ('*CQE") in INTEL's Automotive Group.

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. HAMIDI left his employment on a medical leave of absence on  January 27, 1992. (Hamidi Decl. at ¶  3). Although  HAMIDI was terminated involuntarily, he was not terminated for cause. (Hamidi Decl. at ¶  4). Kirby Dyess,  the Director of  Human Resources for INTEL and the executive personally responsible for the termination of   HAMIDI admitted under oath that INTEL had violated its own internal policies in terminating HAMIDI prior to the resolution of his workers compensation case. (Hamidi Decl. at ¶  4).

In 1996 , 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. (Hamidi Decl. at ¶  5). 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. (Hamidi Decl. at ¶   5).

As part of HAMIDI's efforts to communicate to INTEL employees about crucial employment issues, HAMIDI sent, over a period of two years, seven electronic mails to the electronic mail boxes of some INTEL employees.

(Hamidi Decl. at ¶  6). The electronic mail messages did not originate on INTEL property, nor were they sent to INTEL property. The electronic mails were sent over the Internet to a server. (Hamidi Decl. at ¶  6). In order to retrieve the electronic mails, the recipient would be required to connect his or her computer to the Internet via a modem, and then affirmatively download the mail messages from his or her own server. Once downloaded, the messages could not be read until the recipient affirmatively opened the messages, much like opening a letter received in your mailbox.  Also, like mail in your mailbox, electronic mails can be deleted without even being read.
 
 

In determining a Motion for Summary Judgment the evidence must be viewed by the Court in the light most favorable to the non-moving party, and any factual conflicts must be resolved in favor of the non-moving party. Chesny v. Grisham (1976) 64 Cal.App.3d 120, 134 Cal.Rptr. 238. The moving party bears the burden of furnishing supporting documents that establish that the claims of the adverse party are entirely without merit on any legal theory. Lipson v. Superior Court (1982) 31 Cal.3d 362, 374; see also FSR Brokerage Inc., v. Superior Court (1995) 35 Cal.App.4th 69 (construing 1993 amendment to summary judgment statute, C.C.P; section 437c). The facts alleged in affidavits by the non-moving party must be accepted as true. Zeilman v. County of Kern (1985) 168 Cal.App.3d 1174, 1178, 214 Cal. Rptr. 746.

Further, the court must consider not only the direct evidence presented, but also the reasonable inferences to be drawn therefrom.

California Code of Civil Procedure section 437c(c); Mann v. Cracciolo (1985) 35 Cal.3d 18, 210 Cal.Rptr. 62. Any doubt as to the propriety of the motion is resolved in favor of the party opposing the motion. Stationer's Corp. v. Dunn & Bradstreet, Inc. (1965) 62 Cal.2d 412, 417, 42 Cal.Rptr. 449.

At the summary judgment stage, the court's sole function is issue-finding, not issue determination. California Code of Civil Procedure section 437c. The summary judgment procedure is "drastic," and is to be used with caution so that it does not become a substitute for a full trial.

Sprecher v. Adamson Companies (1981) 30 Cal.3d 358, 372, 178 Cal.Rptr 783. "It is only when the witnesses are present and subject to cross-examination that their credibility and the weight to be given their testimony can be appraised. Trial by affidavit is no substitute for trial by jury which so Long has been the hallmark of   'even handed justice.'" Poller v Columbia Broadcasting (1962) 368 U.S. 464, 473, 82 S.Ct. 486 491.  (Emphasis added)

If this court is to grant summary judgment as to the cause of action for trespass to chattels and deny HAMIDI the opportunity to defend himself,  this court must be convinced of not one but two incontrovertible facts:

First, that HAMIDI is guilty of trespass to chattels as a matter of law, wherein no element of the tort is subject to a factual dispute, such that the court may properly deny HAMIDI a trial on the merits. Second, that upon a finding of trespass to chattels by HAMIDI as a matter of law, that there is no defense available in law upon any theory to justify the tortious interference or provide a valid defense thereto.

This court granted a preliminary injunction against HAMIDI based on the affidavits provided by INTEL. Discovery conducted by HAMIDI subsequent to the granting of that preliminary injunction shows a changed landscape and now offers this court a clearer picture than that painted by INTEL. Not only is there a valid factual dispute as to whether a trespass was committed, there are serious and far reaching free speech issues inextricably woven into the fabric of this case which would necessitate a balancing of interest test even upon a finding of a trespass to chattels, thereby rendering summary judgment inappropriate.

THE REQUEST BY INTEL FOR INJUNCTIVE RELIEF INVOLVES STATE ACTION Although INTEL has not addressed the issue, the invocation of this court for  preliminary and a permanent injunctions involve state action.

See Shelley v. Kraemer 334 U.S. 1 (1948).  INTEL requests this court to exercise its coercive power to permanently enjoin HAMIDI from communicating directly to INTEL employees via the Internet. As stated in New York Times Co. v. Sullivan 376 U..S. 254 (1964), where state action was involved in enforcement of state libel laws: "[t]he test is not the form in which state power has been applied, but whatever the form, whether such power has in fact been exercised." Id. at 265.

Cases subsequent to New York Times Co. v. Sullivan have held that state action is invoked in the enforcement of laws that restrict first amendment freedoms. In Cohen v. Cowles Media Co., 501 U.S. 663 (1991), which involved the enforcement of state promissory estoppel laws, the court stated:

The initial question we face is whether a private cause of action for promissory estoppel involves "state action" within the meaning of the [Constitution] such that the protections of the First Amendment are triggered. For if it does not, then the First Amendment has no bearing on this case. The rationale of our decision in New York Times Co. v. Sullivan and subsequent cases compels the conclusion that there is state action here. Our cases teach that the application of state rules of law in state courts in a manner alleged to restrict First Amendment freedoms constitutes "state action" under the [Constitution].... These legal obligations would be enforced through the official power of the Minnesota courts. Under our cases, that is enough to constitute 'state action' for the purposes of the [Constitution].  Id. at 668 (citations omitted).

See also  Lloyd  Corp. v. Whiffen, 750 P.2d 1157, 1159-60, (Or. Ct. App.1988) (observing that if the state applies constitutional constraints to private libel suits, then state action must be present when a court enjoins a trespass), affirmed on other grounds, 773 R2d 1294 (Or. 1989).

THERE EXISTS A FACTUAL DISPUTE AS TO WHETHER ELECTRONIC MAIL FROM HAMIDI TO INTERNET ADDRESSES OF EMPLOYEES OF INTEL CONSTITUTED A TRESPASS TO CHATTELS INTEL  does not like HAMIDI. One look at the FACE-INTEL web page explains why. INTEL does not like what HAMIDI has to say about INTEL. This simple fact explains why INTEL has chosen to sue HAMIDI for trespass to chattels and nuisance in response to only seven messages over a two year period sent via the democratizing electronic medium of the Internet, and parenthetically, why INTEL chose to devote so much of the legal argument in their Motion for a Preliminary Injunction personally attacking HAMIDI.  (Shostak Decl., Motion for Preliminary Injunction.)

1. HAMIDI DID NOT INVADE INTEL's PROPRIETY COMPUTER SYSTEM INTEL's motion for summary adjudication for trespass to chattels is inextricably dependent upon the preliminary finding as a matter of law, that there is no factual dispute as to whether or not Ken Hamidi's e-mails improperly interfered with the use of INTEL's computers to such an extent that the e-mails caused actual damage. In fact, not only is there an actual dispute as to that fundamental issue, INTEL provides the evidence of such a factual dispute. INTEL has stated repeatedly that HAMIDI improperly trespassed onto INTEL's proprietary computer system. Yet in documents presented in response to HAMIDI's first request for production of documents (HAMIDI RFP), INTEL provides e-mail correspondence sent from one INTEL manager to another, reacting to HAMIDI's e-mails to Internet addresses of INTEL employees.   In an exchange of e-mails from Ken True of INTEL, Carlene M. Ellis of INTEL and Cary Daugherty of INTEL, they expressed opinions on whether HAMIDI effected a security breach onto INTEL's proprietary computer system. The conclusion was that HAMIDI did not commit a breach of the INTEL computer system. (Attached as Exhibit A to HAMIDI Declaration).

INTEL alleges that HAMIDI committed a trespass to chattels, and cites  Thrifty-Tel v Beznek, 46 Cal. App. 4th 1559 (1996) as persuasive authority that, "unconsented access to a computer system constitutes a trespass to chattels." (INTEL Points & Authorities p.3, lines 23-24, attached as Exhibit K to HAMIDI Declaration).  A more appropriate finding from Thrifty-Tel is that interference with a telephone  switching system, accomplished with the intent to defraud money from the owner of that system, can constitute a trespass to chattels.

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. Thrifty-Tel dealt with a scheme to steal money from the plaintiff, and in the attempt, defendants overloaded the victim's telephone system. There is little correlation to this case, yet INTEL misstates the case to hold somehow that unconsented access to a computer system is prima facie evidence of trespass to chattels.

2. HAMIDI's E-MAILS DID NOT BURDEN OR INTERFERE WITH INTEL'S COMPUTER OPERATIONS AS REQUIRED FOR TRESPASS TO CHATTELS.

Leaping from Thrifty-Tel to an Ohio case, CompuServe Inc. v Cyber Promotions, Inc. 962 F. Supp. 1015 (S.D. Ohio 1997), INTEL alleges that CompuServe Inc. v Cyber Promotions, Inc., stands for the proposition that unauthorized e-mail necessarily constitutes a trespass to chattels. HAMIDI sent e-mails to INTEL employees, ergo, HAMIDI committed trespass to chattels. Not only does that premise misstate CompuServe Inc. v Cyber Promotions, Inc., it ignores the many dissimilarities to the case at bar.

CompuServe Inc. v Cyber Promotions, Inc., involved the mass e-mailing of commercial messages by Cyber Promotions to CompuServe for the purposes of marketing to CompuServe's customer subscribers, unlike this case which deals with non-commercial public issues. Like Thrifty-Tel, the e-mailing was so voluminous as to burden CompuServe's computer facilities. Unlike Thrifty-Tel and CompuServe Inc. v Cyber Promotions, Inc., this case involves no burdening of INTEL's computer system. To get around this problem of lack of actual burden on the system, INTEL alleges that computer personnel spent significant amounts of time attempting to block or remove HAMIDI's e-mails, yet documents provided by INTEL in discovery belie such claims. In one document Cary Daugherty opines that blocking could be effected in as short as two hours. (Attached as Exhibit A to HAMIDI Declaration).   More remarkably, INTEL  provided numerous advisories to employees indicating that one effective method of avoiding future e-mailings from HAMIDI was simply to ask HAMIDI to remove them from his list and HAMIDI would do so. (Attached as Exhibits  B, C, E, F, G, and I to HAMIDI Declaration).

This case is further distinguished from CompuServe Inc. v Cyber Promotions, Inc., in that CompuServe's customer users were billed for their time spent on-line accessing their e-mail accounts. CompuServe charged their customers for customer time spent on-line dealing with and removing unwanted commercial e-mail advertisements.

CompuServe Inc. v Cyber Promotions, Inc., involved a request for a preliminary injunction. Even though the court granted the preliminary injunction, Cyber Promotions was still afforded the opportunity to defend on the merits after the granting of the motion. A   Motion for Summary Judgment is much more drastic than a preliminary injunction and, as such, whatever persuasive authority the ruling in CompuServe  may have provided to this court in support of a preliminary injunction does not apply to a motion for summary judgment, which results in a final foreclosure of the defendant's opportunity to defend on the merits.

The cases cited by INTEL as persuasive authority are not pertinent to  the issues before this court.. HAMIDI did not overload INTEL's computer or telephone systems. (Attached as Exhibit A to  HAMIDI Declaration). The only evidence of disruption was caused by INTEL's efforts to keep the content of HAMIDI's messages out of reach of INTEL employees.  INTEL admits blocking the FACE-INTEL web page, clearly indicating that INTEL did not wish to have employees actively seek out HAMIDI's messages concerning INTEL's personnel policies. (Attached as Exhibits D, H, and I to HAMIDI Declaration).

HAMIDI did not cause any actual damage to INTEL's chattels as required by CompuServe The interest of a possessor of a chattel in its inviolability, unlike the similar interest of a possessor of land is not given legal protection by an action  for nominal damages for harmless intermeddling with the chattel. In order that an actor who interferes with another's chattel may be liable, his conduct must affect some other and more important interest of the possessor. Therefore, one who intentionally intermeddles with another's chattel is subject to liability only if his intermeddling is harmful to the possessor's materially valuable interest in the physical condition, quality, or value of the chattel, or if the possessor is deprived of the use of the chattel for a substantial time, or some other legally protected interest of the possessor is affected as stated in Clause (e).

Restatement (Second )of Torts § 218.  HAMIDI did not send millions of e-mails on a daily  basis. HAMIDI did not send commercial messages as a service provider to a competing service provider. (Sedayao Decl. Exh. 1).

INTEL  cites several other cases; America Online, Inc. v. IMS, 1998 U.S. Dist. LEXIS 17437 (E.D. Va. October 29, 1998; Earthlink Network, Inc. v. Cyber Promotions, Inc. (Super. Ct. L.A. County, 1997, No. BC167502); and Hotmail Corp. v. Van Money Pie, Inc., No. C98-20064JW, 1998 U.S. Dist. LEXIS 10729 (N.D. Cal. April 16, 1998), all allegedly supportive of the proposition that one can commit a trespass to chattels via e-mail. However, the Archilles Heel in INTEL's argument is that none of these cases stand for the proposition that sending e-mails to electronic addresses on the Internet, in and of itself, constitutes a trespass to chattels. In every case alleging trespass to chattels there still must be a finding of unreasonable interference with the use of personal property amounting to actual damage. In other words, there still must be an independent finding of a trespass to chattels. If not, we arrive at the absurd conclusion that the mere sending of unsolicited e-mails is a tort. In fact, the court in CompuServe makes it quite clear that it is not appropriate to resort to legal action until the aggrieved party has exhausted all technological means of self help.

"...this Court also notes that the implementation of technological means of self-help, to the extent that reasonable measures are effective, is particularly appropriate in this type of situation and should he exhausted before legal action is proper." Id. at page 1023.

The discovery provided by INTEL clearly shows that INTEL did not exhaust their self help obligations before resorting to the power of the court. (Attached as Exhibit A to   HAMIDI Declaration)

ASSUMING ARGUENDO THAT A TRESPASS TO CHATTELS WAS COMMITTED, THE INTERESTS PUT FORTH BY INTEL ARE OUTWEIGHED BY FIRST AMENDMENT RIGHTS HAMIDI has demonstrated that even a showing of trespass to chattels does not mandate a decision for summary adjudication. Such a showing is a necessary, not a sufficient, condition precedent. HAMIDI, by his e-mails, has engaged in the highest echelon of protected free speech. Unlike the authorities cited by INTEL involving self-serving commercial speech, HAMIDI's messages question INTEL's treatment of employees through INTEL's personnel policies and highlight the ever present potential for adversity of interests between employer and employee.

In support of its assertion that HAMIDI does not have a first amendment right to express his views to INTEL employees via e-mail over the Internet, INTEL cites several single forum cases in which the persons charging first amendment rights were physically on the property of the complainant. One case, Alred v. Shawley 232 Cal.App. 3d 1489 (1991) dealt with a preliminary injunction, not a motion for summary judgment.

INTEL asserts that HAMIDI does not have a first amendment right because "INTEL's proprietary e-mail system is for company business and is not open to the general public." (INTEL Points & Authorities, page  6, lines 11, 12, attached as Exhibit J to HAMIDI Declaration).  Accepting the truth of that declaration leads the court to ponder a question of semantics, and ultimately one question of disputed fact. For even as INTEL makes that statement, INTEL submits written documents demonstrating that the intended recipients of HAMIDI's e-mails are authorized to engage in personal use of INTEL computer facilities. (INTEL "E-mail, Internet, and Computer-use Guideline HR   Guidelines: Work Environment 20.014a,"  attached as Exhibit 1 to the Ken True Declaration.) Furthermore,  INTEL made the following admissions:

1) Employees are permitted reasonable personal use of networked computer equipment. (True Decl. Exh. 1).

2) Personal use by employees includes Internet access for purposes of sending or receiving appropriate [non-pornographic, etc.] electronic mail. (True Decl. Exh. 1).

3) INTEL connects to the Internet to send or receive some electronic mail. (HAMIDI's RFA Set No. 2. RFA No. 4, attached as Exhibit K to HAMIDI Declaration.)

4) Some INTEL employees use the Internet to send and receive (personal) electronic mail. (HAMIDI's RFA Set No. 2. RFA No. 3, attached as Exhibit K to HAMIDI Declaration.)

In spite of these admissions, INTEL asserts with a straight face that the Internet is only for "Intel's business use." (Ken True Decl. page 1 line 28.) Yet the written guidelines clearly state under the header, INTERNET POSTINGS.

Intel employees may choose...to participate in public forums on the network, including newsgroups, chat environments, and so forth. Employees cannot represent Intel's corporate opinion unless they have been specifically asked to do so.

Whenever posting from an Intel account, employees should always include a disclaimer that they are not speaking for Intel. Even when posting from home or another non-Intel site, if the employee is likely to be identified with Intel (e.g., an employee who publishes white papers for Intel) and if the posting is on a matter related to Intel business, the employee should include a disclaimer that he/she is not speaking for Intel. (INTEL "E-mail, Internet, and Computer-use Guideline HR  Guidelines: Work Environment 20.014a,"  attached as Exhibit 1 to the Ken True Declaration.) This single excerpt from the Intel Guidelines clearly indicates that not only are employees encouraged to participate in public forums, employee postings may be on matters not related to Intel business. Defining "business use,"  to include "personal use"  as INTEL seems to be doing, is none other than Orwellian double-speak..

Based on the foregoing Points and Authorities, HAMIDI respectfully requests that INTEL's  Motion for Summary Judgment be denied.
 
 

Dated: April 5, 1999

(Signed by David Hurd)

David J. Hurd

Attorney for Defendant, Kourosh Kenneth Hamidi