Statutory Authority. Unavailability of Opposing Facts. If it appears from the affidavits submitted in opposition to a motion for summary judgment or summary adjudication or both that facts essential to justify opposition may exist but cannot, for reasons stated, then be presented, the court shall deny the motion, or order a continuance to permit affidavits to be obtained or discovery to be had or may make other order as may be just. (CCP § 437c(h) See Stationers Corp. v Dun & Bradstreet. Inc. (1965) 62 Cal2d 412, 421, 42 Cal Rptr 449, 398 P2d 785.

As set forth in the declaration of Kourosh Kenneth Hamidi, attached hereto, the complaint was filed on October 7, 1998, defendants were served on October 8, 1998; Defendant has been diligent in defending this case. Plaintiff filed a motion for preliminary injunction, which was set for hearing on November 24, 1998. This court granted the preliminary injunction. No oral arguments were presented.

Defendant, Kourosh Kenneth Hamidi, propounded his first set of Request for Admission to Plaintiff on December 11, 1998. Defendant, Kourosh Kenneth Hamidi, propounded his first set of Interrogatories and Request for Production of Documents on December 17, 1998. Defendant seeks written discovery which has not been produced by Plaintiff, and may require court intervention in the form of a motion to compel. Defendant believes that the discovery requests propounded by Defendant will provide information critical to an effective defense of this case. 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. In the declaration of Kenneth True, Plaintiff alleges several "undisputed" facts:

1.  Kenneth True's job is to protect Intel's e-mail systems from access by outside sources. True Declaration.

2.  Intel's e-mail system is for business use. True Declaration 12.

3.  Intel employees receive authorized e-mail from outside sources. True Declaration

4.  All uninvited outside messages are blocked or attempted to be blocked. True Declaration 12.

Defendant directs the Courts attention to the written e-mail policy submitted by Plaintiff and attached as Exhibit 1 to Kenneth True's Declaration. In Exhibit 1, Plaintiff admits, with regards to their "proprietary' computer systems that, "Reasonable personal use [by employees] is permitted." 8 (emphasis added).

A logical reading of permitted personal use implies that employees are authorized, within the limits of the guidelines, to send and receive e-mail to and from outside sources for non-business use.

The fact that employees are authorized by Plaintiff to access non-invited outside sources for personal use is confirmed on page 2 of the guidelines, which prohibits employees, in their personal use of Intel's computers from, "Posting, transferring, downloading, viewing, or linking to material that is offensive, abusive, obscene, defamatory, or threatening. Examples include hate-material, pornogra phy, personal attacks, reaical/ethnic, or gender-based slurs or jokes, profanity, or any material that violateds Intel's Harassment Guideline." By definition, Plaintiff's employees are authorized to download, view, post, transfer, or link to internet sites, or e-mail that is not pornographic, defamatory, etc. indeed , contrary to Kenneth True's declaration, employees are permitted to access "non20 authorized", "non-invited," e-mail forums on the internet, such as the e-mails sent by Defendant, as is clearly stated in Plaintiff's submitted e-mail policy, page 2, under the heading "INTERNET POSTINGS, "Intel employees may choose, or may be required by their jobs, to participate in public forums on the network, including newsgroups, chat environments, and so forth."

Not only are employees permitted to access the internet, e-mail, and newsgroups for personnal use, in fact, the guidelines advice employees that they may be required to participate in public forums on the internet.

A close reading of Plaintiff's submitted documents raises several factual disputes central to this summary judgment motion. Is Plaintiff's computer system "proprietary" in the sense that e-mails, such as Defendant's are not permitted? No.

Do Plaintiff's employees have the right under Plaintiff's own policies to receive unsolicited e-mails for personal use? Yes.

Therefore is this really a trespass by Defendant unto a purported "proprietary" computer network as alleged, or is Plaintiff unhappy with the content of constitutionally protected free speech to employees scattered about the globe---employees, who by Plaintiff's own policies, are authorized to receive and send such messages.

Plaintiff's documents disclose a factual dispute which goes to the essence ot the complaint filed against Defendant, who is charged with trespass to chattels. Plaintiff's own documents disclose a limited privilege, possessed by it's employees, to send and receive e-mails from anyone accessing the internet. This privilege is held by the employees, granted by contract. Defendant's efforts to e-mail Plaintiff's employees, in conformance with Plaintiff's own written policies is not a trespass. Further more, since Plaintiff has granted it's employees the right to use it's computer systems for personal use, any communication to and from those employees, though not private, is a right held by the employee by contract. Intel does not properly have standing to protest Defendant's communicating with employees who may have a desire to receive those messages. The employees have the right to receive those messages under Plaintiff's own policies. Intel has chosen to attack the sender of the message. Had Plaintiff attempted to sue it's employees for receiving or sending the e-mails to Defendant, Plaintiff clearly would have been barred by the authorization granted in their own written policies. Thus, it is incumbant upon Plaintiff to modify it's written policies, if personal use is no longer to be permitted.

Defendant has been diligent in pursuing a defense to the allegations made by Plaintiff, and is entitled to sufficient time to put forth a defense in a case that has substantial free speech interests to the country at large.

For these reasons, Defendant respectfully submits that Plaintiff's motion for summary judgment be continued to such date as the Court deems fair and appropriate.