1.  I am a United States citizen, over the age of 18 years, and I am the Defendant in this action.

2.  I have personal knowledge of the matters set forth in this declaration, and could and would competently testify thereto.

3.  I hereby request a continuance on the motion for summary judgment until such date as the court wishes, not earlier than June 1, 1999. 1 was served with the notice of summary judgment at approximately 5 P.M. on December 14, 1998. On December 16, 1998, 1 called the Court and reserved a time for an ex parte hearing on my request to continue the motion for summary judgment.

4.  This case was filed on October 7, 1998, alleging trespass to chattels and nuisance.

5.  I was served on October 8, 1998.

6.  Plaintiff filed a motion for issuance of a preliminary injunction Said motion was set for hearing on November 24, 1998. The Court granted the motion for a preliminary injunction.

7.  I have propounded discovery against Plaintiff in defense of this action. I sent out 6 Requests for Admissions on December 11, 1998, Request to Identify and Produce Documents and Other Tangible Things, Set One, and Form Interrogatories, Set One, on December 17, 1998.

8.  I contend that there are factual disputes which preclude summary judgment as an appropriate proceeding before I am permitted the opportunity to present a defense to the motion.

9.  Plaintiff has obtained a preliminary injunction, which I am honoring, and therefore Plaintiff will suffer no monetary losses or adverse consequences by the continuance of this motion until such time as I have been able to obtain discovery, and through that discovery, to have the oppor-tunity to present to the Court the merits of my defense.

10.  Plaintiff's own documents and affidavits presented in support of their motion indicate a factual dispute as to the policies governing access to their electronic mail system as set forth in my Points and Authorities.

11.  I noticed opposing counsel of this ex parte motion by written fax transmittal on December 17, 1998, at 2:40 p.m., in accordance with local rule 2.04 and 3.14(A). I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct.
 
 

Dated: December 17, 1998

(Signed by Ken Hamidi)

Kourosh Kenneth Hamidi