Supreme Court of California Justia
Docket No. S103781A
Intel v. Hamadi

Filed 6/30/03 (reposted to reflect George, C.J. concurring in Mosk, J.’s dissent)



Plaintiff and Respondent,



) Ct.App.






Defendant and Appellant.

Super. Ct. No. 98AS05067

Intel Corporation (Intel) maintains an electronic mail system, connected to

the Internet, through which messages between employees and those outside the

company can be sent and received, and permits its employees to make reasonable

nonbusiness use of this system. On six occasions over almost two years, Kourosh

Kenneth Hamidi, a former Intel employee, sent e-mails criticizing Intel’s

employment practices to numerous current employees on Intel’s electronic mail

system. Hamidi breached no computer security barriers in order to communicate

with Intel employees. He offered to, and did, remove from his mailing list any

recipient who so wished. Hamidi’s communications to individual Intel employees

caused neither physical damage nor functional disruption to the company’s

computers, nor did they at any time deprive Intel of the use of its computers. The

contents of the messages, however, caused discussion among employees and


On these facts, Intel brought suit, claiming that by communicating with its

employees over the company’s e-mail system Hamidi committed the tort of

trespass to chattels. The trial court granted Intel’s motion for summary judgment

and enjoined Hamidi from any further mailings. A divided Court of Appeal


After reviewing the decisions analyzing unauthorized electronic contact

with computer systems as potential trespasses to chattels, we conclude that under

California law the tort does not encompass, and should not be extended to

encompass, an electronic communication that neither damages the recipient

computer system nor impairs its functioning. Such an electronic communication

does not constitute an actionable trespass to personal property, i.e., the computer

system, because it does not interfere with the possessor’s use or possession of, or

any other legally protected interest in, the personal property itself. (See Zaslow v.

Kroenert (1946) 29 Cal.2d 541, 551; Ticketmaster Corp. v., Inc.

(C.D.Cal., Aug. 10, 2000, No. 99CV7654) 2000 WL 1887522, p. *4; Rest.2d

Torts, § 218.) The consequential economic damage Intel claims to have suffered,

i.e., loss of productivity caused by employees reading and reacting to Hamidi’s

messages and company efforts to block the messages, is not an injury to the

company’s interest in its computers—which worked as intended and were

unharmed by the communications—any more than the personal distress caused by

reading an unpleasant letter would be an injury to the recipient’s mailbox, or the

loss of privacy caused by an intrusive telephone call would be an injury to the

recipient’s telephone equipment.

Our conclusion does not rest on any special immunity for communications

by electronic mail; we do not hold that messages transmitted through the Internet

are exempt from the ordinary rules of tort liability. To the contrary, e-mail, like

other forms of communication, may in some circumstances cause legally


cognizable injury to the recipient or to third parties and may be actionable under

various common law or statutory theories. Indeed, on facts somewhat similar to

those here, a company or its employees might be able to plead causes of action for

interference with prospective economic relations (see Guillory v. Godfrey (1955)

134 Cal.App.2d 628, 630-632 [defendant berated customers and prospective

customers of plaintiffs’ cafe with disparaging and racist comments]), interference

with contract (see Blender v. Superior Court (1942) 55 Cal.App.2d 24, 25-27

[defendant made false statements about plaintiff to his employer, resulting in

plaintiff’s discharge]) or intentional infliction of emotional distress (see Kisesky v.

Carpenters’ Trust for So. California (1983) 144 Cal.App.3d 222, 229-230 [agents

of defendant union threatened life, health, and family of employer if he did not

sign agreement with union].) And, of course, as with any other means of

publication, third party subjects of e-mail communications may under appropriate

facts make claims for defamation, publication of private facts, or other speech-

based torts. (See, e.g., Southridge Capital Management v. Lowry (S.D.N.Y. 2002)

188 F.Supp.2d 388, 394-396 [allegedly false statements in e-mail sent to several of

plaintiff’s clients support actions for defamation and interference with contract].)

Intel’s claim fails not because e-mail transmitted through the Internet enjoys

unique immunity, but because the trespass to chattels tort—unlike the causes of

action just mentioned—may not, in California, be proved without evidence of an

injury to the plaintiff’s personal property or legal interest therein.

Nor does our holding affect the legal remedies of Internet service providers

(ISP’s) against senders of unsolicited commercial bulk e-mail (UCE), also known

as “spam.” (See Ferguson v. Friendfinders, Inc. (2002) 94 Cal.App.4th 1255,

1267.) A series of federal district court decisions, beginning with CompuServe,

Inc. v. Cyber Promotions, Inc. (S.D.Ohio 1997) 962 F.Supp. 1015, has approved

the use of trespass to chattels as a theory of spammers’ liability to ISP’s, based


upon evidence that the vast quantities of mail sent by spammers both

overburdened the ISP’s own computers and made the entire computer system

harder to use for recipients, the ISP’s customers. (See id. at pp. 1022-1023.) In

those cases, discussed in greater detail below, the underlying complaint was that

the extraordinary quantity of UCE impaired the computer system’s functioning. In

the present case, the claimed injury is located in the disruption or distraction

caused to recipients by the contents of the e-mail messages, an injury entirely

separate from, and not directly affecting, the possession or value of personal



We review a grant of summary judgment de novo; we must decide

independently whether the facts not subject to triable dispute warrant judgment for

the moving party as a matter of law. (Galanty v. Paul Revere Life Ins. Co. (2000)

23 Cal.4th 368, 374; Norgart v. Upjohn Co. (1999) 21 Cal.4th 383, 404; Code Civ.

Proc., § 437c, subd. (c).) The pertinent undisputed facts are as follows.

Hamidi, a former Intel engineer, together with others, formed an

organization named Former and Current Employees of Intel (FACE-Intel) to

disseminate information and views critical of Intel’s employment and personnel

policies and practices. FACE-Intel maintained a Web site (which identified

Hamidi as Webmaster and as the organization’s spokesperson) containing such

material. In addition, over a 21-month period Hamidi, on behalf of FACE-Intel,

sent six mass e-mails to employee addresses on Intel’s electronic mail system.

The messages criticized Intel’s employment practices, warned employees of the

dangers those practices posed to their careers, suggested employees consider

moving to other companies, solicited employees’ participation in FACE-Intel, and

urged employees to inform themselves further by visiting FACE-Intel’s Web site.

The messages stated that recipients could, by notifying the sender of their wishes,


be removed from FACE-Intel’s mailing list; Hamidi did not subsequently send

messages to anyone who requested removal.

Each message was sent to thousands of addresses (as many as 35,000

according to FACE-Intel’s Web site), though some messages were blocked by

Intel before reaching employees. Intel’s attempt to block internal transmission of

the messages succeeded only in part; Hamidi later admitted he evaded blocking

efforts by using different sending computers. When Intel, in March 1998,

demanded in writing that Hamidi and FACE-Intel stop sending e-mails to Intel’s

computer system, Hamidi asserted the organization had a right to communicate

with willing Intel employees; he sent a new mass mailing in September 1998.

The summary judgment record contains no evidence Hamidi breached

Intel’s computer security in order to obtain the recipient addresses for his

messages; indeed, internal Intel memoranda show the company’s management

concluded no security breach had occurred.1 Hamidi stated he created the

recipient address list using an Intel directory on a floppy disk anonymously sent to

him. Nor is there any evidence that the receipt or internal distribution of Hamidi’s

electronic messages damaged Intel’s computer system or slowed or impaired its

functioning. Intel did present uncontradicted evidence, however, that many

employee recipients asked a company official to stop the messages and that staff


To the extent, therefore, that Justice Mosk suggests Hamidi breached the

security of Intel’s internal computer network by “circumvent[ing]” Intel’s
“security measures” and entering the company’s “intranet” (dis. opn. of Mosk, J.,
post, at p. 1), the evidence does not support such an implication. An “intranet” is
“a network based on TCP/IP protocols (an internet) belonging to an organization,
usually a corporation, accessible only by the organization's members, employees,
or others with authorization.”
(< [as of June 30, 2003].)
Hamidi used only a part of Intel’s computer network accessible to outsiders.


time was consumed in attempts to block further messages from FACE-Intel.

According to the FACE-Intel Web site, moreover, the messages had prompted

discussions between “[e]xcited and nervous managers” and the company’s human

resources department.

Intel sued Hamidi and FACE-Intel, pleading causes of action for trespass to

chattels and nuisance, and seeking both actual damages and an injunction against

further e-mail messages. Intel later voluntarily dismissed its nuisance claim and

waived its demand for damages. The trial court entered default against FACE-

Intel upon that organization’s failure to answer. The court then granted Intel’s

motion for summary judgment, permanently enjoining Hamidi, FACE-Intel, and

their agents “from sending unsolicited e-mail to addresses on Intel’s computer

systems.” Hamidi appealed; FACE-Intel did not.2

The Court of Appeal, with one justice dissenting, affirmed the grant of

injunctive relief. The majority took the view that the use of or intermeddling with

another’s personal property is actionable as a trespass to chattels without proof of

any actual injury to the personal property; even if Intel could not show any

damages resulting from Hamidi’s sending of messages, “it showed he was

disrupting its business by using its property and therefore is entitled to injunctive

relief based on a theory of trespass to chattels.” The dissenting justice warned that

the majority’s application of the trespass to chattels tort to “unsolicited electronic

mail that causes no harm to the private computer system that receives it” would


For the first time, in this court, Intel argues Hamidi’s appeal is moot

because, as FACE-Intel’s agent, Hamidi is bound, whatever the outcome of his
own appeal, by the unappealed injunction against FACE-Intel. But as Hamidi
points out in response, he could avoid the unappealed injunction simply by
resigning from FACE-Intel; his own appeal is therefore not moot.


“expand the tort of trespass to chattel in untold ways and to unanticipated


We granted Hamidi’s petition for review.3


I. Current California Tort Law

Dubbed by Prosser the “little brother of conversion,” the tort of trespass to

chattels allows recovery for interferences with possession of personal property

“not sufficiently important to be classed as conversion, and so to compel the

defendant to pay the full value of the thing with which he has interfered.” (Prosser

& Keeton, Torts (5th ed. 1984) § 14, pp. 85-86.)

Though not amounting to conversion, the defendant’s interference must, to

be actionable, have caused some injury to the chattel or to the plaintiff’s rights in

it. Under California law, trespass to chattels “lies where an intentional

interference with the possession of personal property has proximately caused

injury.” (Thrifty-Tel, Inc. v. Bezenek (1996) 46 Cal.App.4th 1559, 1566, italics

added.) In cases of interference with possession of personal property not

amounting to conversion, “the owner has a cause of action for trespass or case,

and may recover only the actual damages suffered by reason of the impairment of

the property or the loss of its use.” (Zaslow v. Kroenert, supra, 29 Cal.2d at

p. 551, italics added; accord, Jordan v. Talbot (1961) 55 Cal.2d 597, 610.) In

modern American law generally, “[t]respass remains as an occasional remedy for


We grant both parties’ requests for notice of legislative history materials

relating to California laws on spam and on injunctions in labor dispute cases.
Hamidi’s further request for notice of the “undisputed” fact that “e-mail messages
that travel into computer equipment consist of electromagnetic waves” is denied as


minor interferences, resulting in some damage, but not sufficiently serious or

sufficiently important to amount to the greater tort” of conversion. (Prosser &

Keeton, Torts, supra, § 15, p. 90, italics added.)

The Restatement, too, makes clear that some actual injury must have

occurred in order for a trespass to chattels to be actionable. Under section 218 of

the Restatement Second of Torts, dispossession alone, without further damages, is

actionable (see id., par. (a) & com. d, pp. 420-421), but other forms of interference

require some additional harm to the personal property or the possessor’s interests

in it. (Id., pars. (b)-(d).) “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 intermeddlings 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 (c).

Sufficient legal protection of the possessor’s interest in the mere inviolability of

his chattel is afforded by his privilege to use reasonable force to protect his

possession against even harmless interference.” (Id., com. e, pp. 421-422, italics


The Court of Appeal (quoting 7 Speiser et al., American Law of Torts

(1990) Trespass, § 23:23, p. 667) referred to “ ‘a number of very early cases

[showing that] any unlawful interference, however slight, with the enjoyment by

another of his personal property, is a trespass.’ ” But while a harmless use or

touching of personal property may be a technical trespass (see Rest.2d Torts,


§ 217), an interference (not amounting to dispossession) is not actionable, under

modern California and broader American law, without a showing of harm. As

already discussed, this is the rule embodied in the Restatement (Rest.2d Torts,

§ 218) and adopted by California law (Zaslow v. Kroenert, supra, 29 Cal.2d at p.

551; Thrifty-Tel, Inc. v. Bezenek, supra, 46 Cal.App.4th at p. 1566).

In this respect, as Prosser explains, modern day trespass to chattels differs

both from the original English writ and from the action for trespass to land:

“Another departure from the original rule of the old writ of trespass concerns the

necessity of some actual damage to the chattel before the action can be

maintained. Where the defendant merely interferes without doing any harm—as

where, for example, he merely lays hands upon the plaintiff’s horse, or sits in his

car—there has been a division of opinion among the writers, and a surprising

dearth of authority. By analogy to trespass to land there might be a technical tort

in such a case . . . . Such scanty authority as there is, however, has considered

that the dignitary interest in the inviolability of chattels, unlike that as to land, is

not sufficiently important to require any greater defense than the privilege of using

reasonable force when necessary to protect them. Accordingly it has been held

that nominal damages will not be awarded, and that in the absence of any actual

damage the action will not lie.” (Prosser & Keeton, Torts, supra, § 14, p. 87,

italics added, fns. omitted.)

Intel suggests that the requirement of actual harm does not apply here

because it sought only injunctive relief, as protection from future injuries. But as

Justice Kolkey, dissenting below, observed, “[t]he fact the relief sought is

injunctive does not excuse a showing of injury, whether actual or threatened.”

Indeed, in order to obtain injunctive relief the plaintiff must ordinarily show that

the defendant’s wrongful acts threaten to cause irreparable injuries, ones that

cannot be adequately compensated in damages. (5 Witkin, Cal. Procedure (4th ed.


1997) Pleading, § 782, p. 239.) Even in an action for trespass to real property, in

which damage to the property is not an element of the cause of action, “the

extraordinary remedy of injunction” cannot be invoked without showing the

likelihood of irreparable harm. (Mechanics’ Foundry v. Ryall (1888) 75 Cal. 601,

603; see Mendelson v. McCabe (1904) 144 Cal. 230, 232-233 [injunction against

trespass to land proper where continued trespasses threaten creation of prescriptive

right and repetitive suits for damages would be inadequate remedy].) A fortiori, to

issue an injunction without a showing of likely irreparable injury in an action for

trespass to chattels, in which injury to the personal property or the possessor’s

interest in it is an element of the action, would make little legal sense.

The dispositive issue in this case, therefore, is whether the undisputed facts

demonstrate Hamidi’s actions caused or threatened to cause damage to Intel’s

computer system, or injury to its rights in that personal property, such as to entitle

Intel to judgment as a matter of law. To review, the undisputed evidence revealed

no actual or threatened damage to Intel’s computer hardware or software and no

interference with its ordinary and intended operation. Intel was not dispossessed

of its computers, nor did Hamidi’s messages prevent Intel from using its

computers for any measurable length of time. Intel presented no evidence its

system was slowed or otherwise impaired by the burden of delivering Hamidi’s

electronic messages. Nor was there any evidence transmission of the messages

imposed any marginal cost on the operation of Intel’s computers. In sum, no

evidence suggested that in sending messages through Intel’s Internet connections

and internal computer system Hamidi used the system in any manner in which it

was not intended to function or impaired the system in any way. Nor does the

evidence show the request of any employee to be removed from FACE-Intel’s

mailing list was not honored. The evidence did show, however, that some

employees who found the messages unwelcome asked management to stop them


and that Intel technical staff spent time and effort attempting to block the

messages. A statement on the FACE-Intel Web site, moreover, could be taken as

an admission that the messages had caused “[e]xcited and nervous managers” to

discuss the matter with Intel’s human resources department.

Relying on a line of decisions, most from federal district courts, applying

the tort of trespass to chattels to various types of unwanted electronic contact

between computers, Intel contends that, while its computers were not damaged by

receiving Hamidi’s messages, its interest in the “physical condition, quality or

value” (Rest.2d Torts, § 218, com. e, p. 422) of the computers was harmed. We

disagree. The cited line of decisions does not persuade us that the mere sending of

electronic communications that assertedly cause injury only because of their

contents constitutes an actionable trespass to a computer system through which the

messages are transmitted. Rather, the decisions finding electronic contact to be a

trespass to computer systems have generally involved some actual or threatened

interference with the computers’ functioning.

In Thrifty-Tel, Inc. v. Bezenek, supra, 46 Cal.App.4th at pages 1566-1567

(Thrifty-Tel), the California Court of Appeal held that evidence of automated

searching of a telephone carrier’s system for authorization codes supported a cause

of action for trespass to chattels. The defendant’s automated dialing program

“overburdened the [plaintiff’s] system, denying some subscribers access to phone

lines” (Thrifty-Tel, supra, 46 Cal.App.4th at p. 1564), showing the requisite injury.

Following Thrifty-Tel, a series of federal district court decisions held that

sending UCE through an ISP’s equipment may constitute trespass to the ISP’s

computer system. The lead case, CompuServe, Inc. v. Cyber Promotions, Inc.,

supra, 962 F.Supp. 1015, 1021-1023 (CompuServe), was followed by Hotmail

Corp. v. Van$ Money Pie, Inc. (N.D.Cal., Apr. 16, 1998, No. C 98-20064 JW)

1998 WL 388389, page *7, America Online, Inc. v. IMS (E.D.Va. 1998) 24


F.Supp.2d 548, 550-551, and America Online, Inc. v. LCGM, Inc. (E.D.Va. 1998)

46 F.Supp.2d 444, 451-452.

In each of these spamming cases, the plaintiff showed, or was prepared to

show, some interference with the efficient functioning of its computer system. In

CompuServe, the plaintiff ISP’s mail equipment monitor stated that mass UCE

mailings, especially from nonexistent addresses such as those used by the

defendant, placed “a tremendous burden” on the ISP’s equipment, using “disk

space and drain[ing] the processing power,” making those resources unavailable to

serve subscribers. (CompuServe, supra, 962 F.Supp. at p. 1022.) Similarly, in

Hotmail Corp. v. Van$ Money Pie, Inc., supra, 1998 WL 388389 at page *7, the

court found the evidence supported a finding that the defendant’s mailings

“fill[ed] up Hotmail’s computer storage space and threaten[ed] to damage

Hotmail’s ability to service its legitimate customers.” America Online, Inc. v.

IMS, decided on summary judgment, was deemed factually indistinguishable from

CompuServe; the court observed that in both cases the plaintiffs “alleged that

processing the bulk e-mail cost them time and money and burdened their

equipment.” (America Online, Inc. v. IMS, supra, 24 F.Supp.2d at p. 550.) The

same court, in America Online, Inc. v. LCGM, Inc., supra, 46 F.Supp.2d at page

452, simply followed CompuServe and its earlier America Online decision,

quoting the former’s explanation that UCE burdened the computer’s processing

power and memory.

Building on the spamming cases, in particular CompuServe, three even more

recent district court decisions addressed whether unauthorized robotic data

collection4 from a company’s publicly accessible Web site is a trespass on the


Data search and collection robots, also known as “Web bots” or “spiders,”

are programs designed to rapidly search numerous Web pages or sites, collecting,

(Footnote continued on next page.)


company’s computer system. (eBay, Inc. v. Bidder’s Edge, Inc., supra, 100

F.Supp.2d at pp. 1069-1072 (eBay);, Inc. v. Verio, Inc. (S.D.N.Y.

2000) 126 F.Supp.2d 238, 248-251; Ticketmaster Corp. v., Inc.,

supra, 2000 WL 1887522, at p. *4.) The two district courts that found such

automated data collection to constitute a trespass relied, in part, on the deleterious

impact this activity could have, especially if replicated by other searchers, on the

functioning of a Web site’s computer equipment.

In the leading case, eBay, the defendant Bidder’s Edge (BE), operating an

auction aggregation site, accessed the eBay Web site about 100,000 times per day,

accounting for between 1 and 2 percent of the information requests received by

eBay and a slightly smaller percentage of the data transferred by eBay. (eBay,

supra, 100 F.Supp.2d at pp. 1061, 1063.) The district court rejected eBay’s claim

that it was entitled to injunctive relief because of the defendant’s unauthorized

presence alone, or because of the incremental cost the defendant had imposed on

operation of the eBay site (id. at pp. 1065-1066), but found sufficient proof of

threatened harm in the potential for others to imitate the defendant’s activity: “If

BE’s activity is allowed to continue unchecked, it would encourage other auction

aggregators to engage in similar recursive searching of the eBay system such that

eBay would suffer irreparable harm from reduced system performance, system

unavailability, or data losses.” (Id. at p. 1066.) Again, in addressing the

(Footnote continued from previous page.)

retrieving, and indexing information from these pages. Their uses include creation
of searchable databases, Web catalogues and comparison shopping services.
(eBay, Inc. v. Bidder’s Edge, Inc. (N.D.Cal. 2000) 100 F.Supp.2d 1058, 1060-
1061; O’Rourke, Property Rights and Competition on the Internet: In Search of an
Appropriate Analogy
(2001) 16 Berkeley Tech. L.J. 561, 570-571; Quilter, The
Continuing Expansion of Cyberspace Trespass to Chattels
(2002) 17 Berkeley
Tech. L.J. 421, 423-424.)


likelihood of eBay’s success on its trespass to chattels cause of action, the court

held the evidence of injury to eBay’s computer system sufficient to support a

preliminary injunction: “If the court were to hold otherwise, it would likely

encourage other auction aggregators to crawl the eBay site, potentially to the point

of denying effective access to eBay’s customers. If preliminary injunctive relief

were denied, and other aggregators began to crawl the eBay site, there appears to

be little doubt that the load on eBay’s computer system would qualify as a

substantial impairment of condition or value.” (Id. at pp. 1071-1072.)

Another district court followed eBay on similar facts—a domain name

registrar’s claim against a Web hosting and development site that robotically

searched the registrar’s database of newly registered domain names in search of

business leads—in, Inc. v. Verio, Inc., supra, 126 F.Supp.2d at pages

249-251. Although the plaintiff was unable to measure the burden the defendant’s

searching had placed on its system (id. at pp. 249-250), the district court, quoting

the declaration of one of the plaintiff’s officers, found sufficient evidence of

threatened harm to the system in the possibility the defendant’s activities would be

copied by others: “ ‘I believe that if Verio’s searching of’s WHOIS

database were determined to be lawful, then every purveyor of Internet-based

services would engage in similar conduct.’ ” (Id. at p. 250.) Like eBay, the court

observed, had a legitimate fear “that its servers will be flooded by

search robots.” (Id. at p. 251.)

In the third decision discussing robotic data collection as a trespass,

Ticketmaster Corp. v., Inc., supra, 2000 WL 1887522 (Ticketmaster),

the court, distinguishing eBay, found insufficient evidence of harm to the chattel to

constitute an actionable trespass: “A basic element of trespass to chattels must be

physical harm to the chattel (not present here) or some obstruction of its basic

function (in the court’s opinion not sufficiently shown here). . . . The comparative


use [by the defendant of the plaintiff’s computer system] appears very small and

there is no showing that the use interferes to any extent with the regular business

of [the plaintiff]. . . . Nor here is the specter of dozens or more parasites joining

the fray, the cumulative total of which could affect the operation of [the plaintiff’s]

business.” (Id. at p. *4, italics added.)

In the decisions so far reviewed, the defendant’s use of the plaintiff’s

computer system was held sufficient to support an action for trespass when it

actually did, or threatened to, interfere with the intended functioning of the

system, as by significantly reducing its available memory and processing power.

In Ticketmaster, supra, 2000 WL 1887522, the one case where no such effect,

actual or threatened, had been demonstrated, the court found insufficient evidence

of harm to support a trespass action. These decisions do not persuade us to Intel’s

position here, for Intel has demonstrated neither any appreciable effect on the

operation of its computer system from Hamidi’s messages, nor any likelihood that

Hamidi’s actions will be replicated by others if found not to constitute a trespass.

That Intel does not claim the type of functional impact that spammers and

robots have been alleged to cause is not surprising in light of the differences

between Hamidi’s activities and those of a commercial enterprise that uses sheer

quantity of messages as its communications strategy. Though Hamidi sent

thousands of copies of the same message on six occasions over 21 months, that

number is minuscule compared to the amounts of mail sent by commercial

operations. The individual advertisers sued in America Online, Inc. v. IMS, supra,

24 F.Supp.2d at page 549, and America Online, Inc. v. LCGM, Inc., supra, 46

F.Supp.2d at page 448, were alleged to have sent more than 60 million messages

over 10 months and more than 92 million messages over seven months,

respectively. Collectively, UCE has reportedly come to constitute about 45

percent of all e-mail. (Hansell, Internet Is Losing Ground in Battle Against Spam,


N.Y. Times (Apr. 22, 2003) p. A1, col. 3.) The functional burden on Intel’s

computers, or the cost in time to individual recipients, of receiving Hamidi’s

occasional advocacy messages cannot be compared to the burdens and costs

caused ISP’s and their customers by the ever-rising deluge of commercial e-mail.

Intel relies on language in the eBay decision suggesting that unauthorized

use of another’s chattel is actionable even without any showing of injury: “Even

if, as [defendant] BE argues, its searches use only a small amount of eBay’s

computer system capacity, BE has nonetheless deprived eBay of the ability to use

that portion of its personal property for its own purposes. The law recognizes no

such right to use another’s personal property.” (eBay, supra, 100 F.Supp.2d at p.

1071.) But as the eBay court went on immediately to find that the defendant’s

conduct, if widely replicated, would likely impair the functioning of the plaintiff’s

system (id. at pp. 1071-1072), we do not read the quoted remarks as expressing the

court’s complete view of the issue. In isolation, moreover, they would not be a

correct statement of California or general American law on this point. While one

may have no right temporarily to use another’s personal property, such use is

actionable as a trespass only if it “has proximately caused injury.” (Thrifty-Tel,

supra, 46 Cal.App.4th at p. 1566.) “[I]n the absence of any actual damage the

action will not lie.” (Prosser & Keeton, Torts, supra, § 14, p. 87.) Short of

dispossession, personal injury, or physical damage (not present here),

intermeddling is actionable only if “the chattel is impaired as to its condition,

quality, or value, or [¶] . . . the possessor is deprived of the use of the chattel for a

substantial time.” (Rest.2d Torts, § 218, pars. (b), (c).) In particular, an actionable

deprivation of use “must be for a time so substantial that it is possible to estimate

the loss caused thereby. A mere momentary or theoretical deprivation of use is

not sufficient unless there is a dispossession . . . .” (Id., com. i, p. 423.) That

Hamidi’s messages temporarily used some portion of the Intel computers’


processors or storage is, therefore, not enough; Intel must, but does not,

demonstrate some measurable loss from the use of its computer system.5

In addition to impairment of system functionality, CompuServe and its

progeny also refer to the ISP’s loss of business reputation and customer goodwill,

resulting from the inconvenience and cost that spam causes to its members, as

harm to the ISP’s legally protected interests in its personal property. (See

CompuServe, supra, 962 F.Supp.2d at p. 1023; Hotmail Corp. v. Van$ Money Pie,

Inc., supra, 1998 WL 388389 at p. *7; America Online, Inc. v. IMS, supra, 24

F.Supp.2d at p. 550.) Intel argues that its own interest in employee productivity,

assertedly disrupted by Hamidi’s messages, is a comparable protected interest in

its computer system. We disagree.

Whether the economic injuries identified in CompuServe were properly

considered injuries to the ISP’s possessory interest in its personal property, the

type of property interest the tort is primarily intended to protect (see Rest.2d Torts,

§ 218 & com. e, pp. 421-422; Prosser & Keeton, Torts, supra, § 14, p. 87), has


In the most recent decision relied upon by Intel, Oyster Software, Inc. v.

Forms Processing, Inc. (N.D.Cal., Dec. 6, 2001, No. C-00-0724 JCS) 2001 WL
1736382, pages *12-*13, a federal magistrate judge incorrectly read eBay as
establishing, under California law, that mere unauthorized use of another’s
computer system constitutes an actionable trespass. The plaintiff accused the
defendant, a business competitor, of copying the metatags (code describing the
contents of a Web site to a search engine) from the plaintiff’s Web site, resulting
in diversion of potential customers for the plaintiff’s services. (Id. at pp. *1-*2.)
With regard to the plaintiff’s trespass claim (the plaintiff also pleaded causes of
action for, inter alia, misappropriation, copyright and trademark infringement), the
magistrate judge concluded that eBay imposed no requirement of actual damage
and that the defendant’s conduct was sufficient to establish a trespass “simply
because [it] amounted to ‘use’ of Plaintiff’s computer.” (Id. at p. *13.) But as just
explained, we do not read eBay, supra, 100 F.Supp.2d 1058, as holding that the
actual injury requirement may be dispensed with, and such a suggestion would, in
any event, be erroneous as a statement of California law.


been questioned.6 “[T]he court broke the chain between the trespass and the harm,

allowing indirect harms to CompuServe’s business interests—reputation, customer

goodwill, and employee time—to count as harms to the chattel (the server).”

(Quilter, The Continuing Expansion of Cyberspace Trespass to Chattels, supra, 17

Berkeley Tech. L.J. at pp. 429-430.) “[T]his move cuts trespass to chattels free

from its moorings of dispossession or the equivalent, allowing the court free reign

[sic] to hunt for ‘impairment.’ ” (Burk, The Trouble with Trespass (2000) 4 J.

Small & Emerging Bus.L. 27, 35.) But even if the loss of goodwill identified in

CompuServe were the type of injury that would give rise to a trespass to chattels

claim under California law, Intel’s position would not follow, for Intel’s claimed

injury has even less connection to its personal property than did CompuServe’s.

CompuServe’s customers were annoyed because the system was inundated

with unsolicited commercial messages, making its use for personal communication

more difficult and costly. (CompuServe, supra, 962 F.Supp. at p. 1023.) Their

complaint, which allegedly led some to cancel their CompuServe service, was

about the functioning of CompuServe’s electronic mail service. Intel’s workers, in

contrast, were allegedly distracted from their work not because of the frequency or

quantity of Hamidi’s messages, but because of assertions and opinions the


In support of its reasoning, the CompuServe court cited paragraph (d) of

section 218 of the Restatement Second of Torts, which refers to harm “to some
person or thing in which the possessor has a legally protected interest.” As the
comment to this paragraph explains, however, it is intended to cover personal
injury to the possessor or another person in whom the possessor has a legal
interest, or injury to “other chattel or land” in which the possessor of the chattel
subject to the trespass has a legal interest. (Rest.2d Torts, § 218, com. j, p. 423.)
No personal injury was claimed either in CompuServe or in the case at bar, and
neither the lost goodwill in CompuServe nor the loss of employee efficiency
claimed in the present case is chattel or land.


messages conveyed. Intel’s complaint is thus about the contents of the messages

rather than the functioning of the company’s e-mail system. Even accepting

CompuServe’s economic injury rationale, therefore, Intel’s position represents a

further extension of the trespass to chattels tort, fictionally recharacterizing the

allegedly injurious effect of a communication’s contents on recipients as an

impairment to the device which transmitted the message.

This theory of “impairment by content” (Burk, The Trouble with Trespass,

supra, 4 J. Small & Emerging Bus.L. at p. 37) threatens to stretch trespass law to

cover injuries far afield from the harms to possession the tort evolved to protect.

Intel’s theory would expand the tort of trespass to chattels to cover virtually any

unconsented-to communication that, solely because of its content, is unwelcome to

the recipient or intermediate transmitter. As the dissenting justice below

explained, “ ‘Damage’ of this nature—the distraction of reading or listening to an

unsolicited communication—is not within the scope of the injury against which

the trespass-to-chattel tort protects, and indeed trivializes it. After all, ‘[t]he

property interest protected by the old action of trespass was that of possession; and

this has continued to affect the character of the action.’ (Prosser & Keeton on

Torts, supra, § 14, p. 87.) Reading an e-mail transmitted to equipment designed to

receive it, in and of itself, does not affect the possessory interest in the equipment.

[¶] Indeed, if a chattel’s receipt of an electronic communication constitutes a

trespass to that chattel, then not only are unsolicited telephone calls and faxes

trespasses to chattel, but unwelcome radio waves and television signals also

constitute a trespass to chattel every time the viewer inadvertently sees or hears

the unwanted program.” We agree. While unwelcome communications,

electronic or otherwise, can cause a variety of injuries to economic relations,

reputation and emotions, those interests are protected by other branches of tort


law; in order to address them, we need not create a fiction of injury to the

communication system.

Nor may Intel appropriately assert a property interest in its employees’

time. “The Restatement test clearly speaks in the first instance to the impairment

of the chattel. . . . But employees are not chattels (at least not in the legal sense of

the term).” (Burk, The Trouble with Trespass, supra, 4 J. Small & Emerging

Bus.L. at p. 36.) Whatever interest Intel may have in preventing its employees

from receiving disruptive communications, it is not an interest in personal

property, and trespass to chattels is therefore not an action that will lie to protect it.

Nor, finally, can the fact Intel staff spent time attempting to block Hamidi’s

messages be bootstrapped into an injury to Intel’s possessory interest in its

computers. To quote, again, from the dissenting opinion in the Court of Appeal:

“[I]t is circular to premise the damage element of a tort solely upon the steps taken

to prevent the damage. Injury can only be established by the completed tort’s

consequences, not by the cost of the steps taken to avoid the injury and prevent the

tort; otherwise, we can create injury for every supposed tort.”

Intel connected its e-mail system to the Internet and permitted its

employees to make use of this connection both for business and, to a reasonable

extent, for their own purposes. In doing so, the company necessarily contemplated

the employees’ receipt of unsolicited as well as solicited communications from

other companies and individuals. That some communications would, because of

their contents, be unwelcome to Intel management was virtually inevitable.

Hamidi did nothing but use the e-mail system for its intended purpose—to

communicate with employees. The system worked as designed, delivering the

messages without any physical or functional harm or disruption. These occasional

transmissions cannot reasonably be viewed as impairing the quality or value of

Intel’s computer system. We conclude, therefore, that Intel has not presented


undisputed facts demonstrating an injury to its personal property, or to its legal

interest in that property, that support, under California tort law, an action for

trespass to chattels.

II. Proposed Extension of California Tort Law

We next consider whether California common law should be extended to

cover, as a trespass to chattels, an otherwise harmless electronic communication

whose contents are objectionable. We decline to so expand California law. Intel,

of course, was not the recipient of Hamidi’s messages, but rather the owner and

possessor of computer servers used to relay the messages, and it bases this tort

action on that ownership and possession. The property rule proposed is a rigid

one, under which the sender of an electronic message would be strictly liable to

the owner of equipment through which the communication passes—here, Intel—

for any consequential injury flowing from the contents of the communication. The

arguments of amici curiae and academic writers on this topic, discussed below,

leave us highly doubtful whether creation of such a rigid property rule would be


Writing on behalf of several industry groups appearing as amici curiae,

Professor Richard A. Epstein of the University of Chicago urges us to excuse the

required showing of injury to personal property in cases of unauthorized electronic

contact between computers, “extending the rules of trespass to real property to all

interactive Web sites and servers.” The court is thus urged to recognize, for

owners of a particular species of personal property, computer servers, the same

interest in inviolability as is generally accorded a possessor of land. In effect,

Professor Epstein suggests that a company’s server should be its castle, upon

which any unauthorized intrusion, however harmless, is a trespass.


Epstein’s argument derives, in part, from the familiar metaphor of the

Internet as a physical space, reflected in much of the language that has been used

to describe it: “cyberspace,” “the information superhighway,” e-mail “addresses,”

and the like. Of course, the Internet is also frequently called simply the “Net,” a

term, Hamidi points out, “evoking a fisherman’s chattel.” A major component of

the Internet is the World Wide “Web,” a descriptive term suggesting neither

personal nor real property, and “cyberspace” itself has come to be known by the

oxymoronic phrase “virtual reality,” which would suggest that any real property

“located” in “cyberspace” must be “virtually real” property. Metaphor is a

two-edged sword.

Indeed, the metaphorical application of real property rules would not, by

itself, transform a physically harmless electronic intrusion on a computer server

into a trespass. That is because, under California law, intangible intrusions on

land, including electromagnetic transmissions, are not actionable as trespasses

(though they may be as nuisances) unless they cause physical damage to the real

property. (San Diego Gas & Electric Co. v. Superior Court (1996) 13 Cal.4th

893, 936-937.) Since Intel does not claim Hamidi’s electronically transmitted

messages physically damaged its servers, it could not prove a trespass to land even

were we to treat the computers as a type of real property. Some further extension

of the conceit would be required, under which the electronic signals Hamidi sent

would be recast as tangible intruders, perhaps as tiny messengers rushing through

the “hallways” of Intel’s computers and bursting out of employees’ computers to

read them Hamidi’s missives. But such fictions promise more confusion than

clarity in the law. (See eBay, supra, 100 F.Supp.2d at pp. 1065-1066 [rejecting

eBay’s argument that the defendant’s automated data searches “should be thought

of as equivalent to sending in an army of 100,000 robots a day to check the prices

in a competitor’s store”].)


The plain fact is that computers, even those making up the Internet, are—

like such older communications equipment as telephones and fax machines—

personal property, not realty. Professor Epstein observes that “[a]lthough servers

may be moved in real space, they cannot be moved in cyberspace,” because an

Internet server must, to be useful, be accessible at a known address. But the same

is true of the telephone: to be useful for incoming communication, the telephone

must remain constantly linked to the same number (or, when the number is

changed, the system must include some forwarding or notification capability, a

qualification that also applies to computer addresses). Does this suggest that an

unwelcome message delivered through a telephone or fax machine should be

viewed as a trespass to a type of real property? We think not: As already

discussed, the contents of a telephone communication may cause a variety of

injuries and may be the basis for a variety of tort actions (e.g., defamation,

intentional infliction of emotional distress, invasion of privacy), but the injuries

are not to an interest in property, much less real property, and the appropriate tort

is not trespass.7


The tort law discussion in Justice Brown’s dissenting opinion similarly

suffers from an overreliance on metaphor and analogy. Attempting to find an
actionable trespass, Justice Brown analyzes Intel’s e-mail system as comparable to
the exterior of an automobile (dis. opn. of Brown, J., post, at p. 1), a plot of land
(id., at pp. 14-15), the interior of an automobile (p. 18), a toothbrush (pp. 22-23), a
head of livestock (p. 23), and a mooring buoy (pp. 24-25), while Hamidi is
characterized as a vandal damaging a school building (p. 21) or a prankster
unplugging and moving employees’ computers (p. 23). These colorful analogies
tend to obscure the plain fact that this case involves communications equipment,
used by defendant to communicate. Intel’s e-mail system was equipment designed
for speedy communication between employees and the outside world; Hamidi
communicated with Intel employees over that system in a manner entirely
consistent with its design; and Intel objected not because of an offense against the
integrity or dignity of its computers, but because the communications themselves

(Footnote continued on next page.)


More substantively, Professor Epstein argues that a rule of computer server

inviolability will, through the formation or extension of a market in

computer-to-computer access, create “the right social result.” In most

circumstances, he predicts, companies with computers on the Internet will

continue to authorize transmission of information through e-mail, Web site

searching, and page linking because they benefit by that open access. When a

Web site owner does deny access to a particular sending, searching, or linking

computer, a system of “simple one-on-one negotiations” will arise to provide the

necessary individual licenses.

Other scholars are less optimistic about such a complete propertization of

the Internet. Professor Mark Lemley of the University of California, Berkeley,

writing on behalf of an amici curiae group of professors of intellectual property

and computer law, observes that under a property rule of server inviolability,

“each of the hundreds of millions of [Internet] users must get permission in

advance from anyone with whom they want to communicate and anyone who

owns a server through which their message may travel.” The consequence for e-

mail could be a substantial reduction in the freedom of electronic communication,

as the owner of each computer through which an electronic message passes could

impose its own limitations on message content or source. As Professor Dan

Hunter of the University of Pennsylvania asks rhetorically: “Does this mean that

(Footnote continued from previous page.)

affected employee-recipients in a manner Intel found undesirable. The proposal
that we extend trespass to chattels to cover any communication that the owner of
the communications equipment considers annoying or distracting raises, moreover,
concerns about control over the flow of information and views that would not be
presented by, for example, an injunction against chasing another’s cattle or
sleeping in her car.


one must read the ‘Terms of Acceptable Email Usage’ of every email system that

one emails in the course of an ordinary day? If the University of Pennsylvania had

a policy that sending a joke by email would be an unauthorized use of their

system, then under the logic of [the lower court decision in this case], you commit

‘trespass’ if you emailed me a . . . cartoon.” (Hunter, Cyberspace as Place, and

the Tragedy of the Digital Anticommons (2003) 91 Cal. L.Rev. 439, 508-509.)

Web site linking, Professor Lemley further observes, “would exist at the

sufferance of the linked-to party, because a Web user who followed a

‘disapproved’ link would be trespassing on the plaintiff’s server, just as sending an

e-mail is trespass under the [lower] court’s theory.” Another writer warns that

“[c]yber-trespass theory will curtail the free flow of price and product information

on the Internet by allowing website owners to tightly control who and what may

enter and make use of the information housed on its Internet site.” (Chang,

Bidding on Trespass: eBay, Inc. v. Bidder’s Edge, Inc. and the Abuse of Trespass

Theory in Cyberspace Law (2001) 29 AIPLA Q.J. 445, 459.) A leading scholar of

Internet law and policy, Professor Lawrence Lessig of Stanford University, has

criticized Professor Epstein’s theory of the computer server as quasi-real property,

previously put forward in the eBay case (eBay, supra, 100 F.Supp.2d 1058), on the

ground that it ignores the costs to society in the loss of network benefits: “eBay

benefits greatly from a network that is open and where access is free. It is this

general feature of the Net that makes the Net so valuable to users and a source of

great innovation. And to the extent that individual sites begin to impose their own

rules of exclusion, the value of the network as a network declines. If machines

must negotiate before entering any individual site, then the costs of using the

network climb.” (Lessig, The Future of Ideas: The Fate of the Commons in a

Connected World (2001) p. 171; see also Hunter, Cyberspace as Place, and the

Tragedy of the Digital Anticommons, supra, 91 Cal. L.Rev. at p. 512 [“If we


continue to mark out anticommons claims in cyberspace, not only will we

preclude better, more innovative uses of cyberspace resources, but we will lose

sight of what might be possible”].)

We discuss this debate among the amici curiae and academic writers only

to note its existence and contours, not to attempt its resolution. Creating an

absolute property right to exclude undesired communications from one’s e-mail

and Web servers might help force spammers to internalize the costs they impose

on ISP’s and their customers. But such a property rule might also create

substantial new costs, to e-mail and e-commerce users and to society generally, in

lost ease and openness of communication and in lost network benefits. In light of

the unresolved controversy, we would be acting rashly to adopt a rule treating

computer servers as real property for purposes of trespass law.

The Legislature has already adopted detailed regulations governing UCE.

(Bus. & Prof. Code, §§ 17538.4, 17538.45; see generally Ferguson v.

Friendfinders, Inc., supra, 94 Cal.App.4th 1255.) It may see fit in the future also

to regulate noncommercial e-mail, such as that sent by Hamidi, or other kinds of

unwanted contact between computers on the Internet, such as that alleged in eBay,

supra, 100 F.Supp.2d 1058. But we are not persuaded that these perceived

problems call at present for judicial creation of a rigid property rule of computer

server inviolability. We therefore decline to create an exception, covering

Hamidi’s unwanted electronic messages to Intel employees, to the general rule that

a trespass to chattels is not actionable if it does not involve actual or threatened

injury to the personal property or to the possessor’s legally protected interest in the

personal property. No such injury having been shown on the undisputed facts,

Intel was not entitled to summary judgment in its favor.


III. Constitutional Considerations

Because we conclude no trespass to chattels was shown on the summary

judgment record, making the injunction improper on common law grounds, we

need not address at length the dissenters’ constitutional arguments. A few

clarifications are nonetheless in order.

Justice Mosk asserts that this case involves only “a private entity seeking to

enforce private trespass rights.” (Dis. opn. of Mosk, J., post, at p. 14.) But the

injunction here was issued by a state court. While a private refusal to transmit

another’s electronic speech generally does not implicate the First Amendment,

because no governmental action is involved (see Cyber Promotions, Inc. v.

America Online, Inc. (E.D.Penn. 1996) 948 F.Supp. 436, 441-445 [spammer could

not force private ISP to carry its messages]), the use of government power,

whether in enforcement of a statute or ordinance or by an award of damages or an

injunction in a private lawsuit, is state action that must comply with First

Amendment limits. (Cohen v. Cowles Media Co. (1991) 501 U.S. 663, 668;

NAACP v. Claiborne Hardware Co. (1982) 458 U.S. 886, 916, fn. 51; New York

Times v. Sullivan (1964) 376 U.S. 254, 265.) Nor does the nonexistence of a

“constitutional right to trespass” (dis. opn. of Mosk, J., post, at p. 14) make an

injunction in this case per se valid. Unlike, for example, the trespasser-to-land

defendant in Church of Christ in Hollywood v. Superior Court (2002) 99

Cal.App.4th 1244, Hamidi himself had no tangible presence on Intel property,

instead speaking from his own home through his computer. He no more invaded

Intel’s property than does a protester holding a sign or shouting through a bullhorn

outside corporate headquarters, posting a letter through the mail, or telephoning to

complain of a corporate practice. (See Madsen v. Women’s Health Center (1994)


512 U.S. 753, 765 [injunctions restraining such speakers must “burden no more

speech than necessary to serve a significant government interest”].)8

Justice Brown relies upon a constitutional “right not to listen,” rooted in the

listener’s “personal autonomy” (dis. opn. of Brown, J., post, at p. 11), as

compelling a remedy against Hamidi’s messages, which she asserts were sent to

“unwilling” listeners (id., at p. 4). Even assuming a corporate entity could under

some circumstances claim such a personal right, here the intended and actual

recipients of Hamidi’s messages were individual Intel employees, rather than Intel

itself. The record contains no evidence Hamidi sent messages to any employee

who notified him such messages were unwelcome. In any event, such evidence

would, under the dissent’s rationale of a right not to listen, support only a narrow

injunction aimed at protecting individual recipients who gave notice of their

rejection. (See Bolger v. Youngs Drug Products Corp. (1983) 463 U.S. 60, 72

[government may not act on behalf of all addressees by generally prohibiting

mailing of materials related to contraception, where those recipients who may be

offended can simply ignore and discard the materials]; Martin v. City of Struthers

(1943) 319 U.S. 141, 144 [anti-canvassing ordinance improperly “substitutes the

judgment of the community for the judgment of the individual householder”]; cf.

Rowan v. U.S. Post Office Dept. (1970) 397 U.S. 728, 736 [“householder” may


Justice Brown would distinguish Madsen v. Women’s Health Cente, supra,

on the ground that the operators of the health center in that case would not have
been entitled to “drive[] [the protesters] from the public streets,” whereas Intel was
entitled to block Hamidi’s messages as best it could. (Dis. opn. of Brown, J., post,
at p. 6, fn. 1.) But the health center operators were entitled to block protesters’
messages—as best they could—by closing windows and pulling blinds. That a
property owner may take physical measures to prevent the transmission of others’
speech into or across the property does not imply that a court order enjoining the
speech is not subject to constitutional limitations.


exercise “individual autonomy” by refusing delivery of offensive mail].) The

principal of a right not to listen, founded in personal autonomy, cannot justify the

sweeping injunction issued here against all communication to Intel addresses, for

such a right, logically, can be exercised only by, or at the behest of, the recipient

himself or herself.


The judgment of the Court of Appeal is reversed.





Associate Justice of the Court of Appeal, Second Appellate District,

Division Six, assigned by the Chief Justice pursuant to article VI, section 6 of the
California Constitution.



I concur.

Does a person commit the tort of trespass to chattels by making occasional

personal calls to a mobile phone despite the stated objection of the person who

owns the mobile phone and pays for the mobile phone service? Does it matter that

the calls are not made to the mobile phone’s owner, but to another person who

ordinarily uses that phone? Does it matter that the person to whom the calls are

made has not objected to them? Does it matter that the calls do not damage the

mobile phone or reduce in any significant way its availability or usefulness?

The majority concludes, and I agree, that using another’s equipment to

communicate with a third person who is an authorized user of the equipment and

who does not object to the communication is trespass to chattels only if the

communications damage the equipment or in some significant way impair its

usefulness or availability.

Intel has my sympathy. Unsolicited and unwanted bulk e-mail, most of it

commercial, is a serious annoyance and inconvenience for persons who

communicate electronically through the Internet, and bulk e-mail that distracts

employees in the workplace can adversely affect overall productivity. But, as the

majority persuasively explains, to establish the tort of trespass to chattels in

California, the plaintiff must prove either damage to the plaintiff’s personal

property or actual or threatened impairment of the plaintiff’s ability to use that


property. Because plaintiff Intel has not shown that defendant Hamidi’s

occasional bulk e-mail messages to Intel’s employees have damaged Intel’s

computer system or impaired its functioning in any significant way, Intel has not

established the tort of trespass to chattels.

This is not to say that Intel is helpless either practically or legally. As a

practical matter, Intel need only instruct its employees to delete messages from

Hamidi without reading them and to notify Hamidi to remove their workplace e-

mail addresses from his mailing lists. Hamidi’s messages promised to remove

recipients from the mailing list on request, and there is no evidence that Hamidi

has ever failed to do so. From a legal perspective, a tort theory other than trespass

to chattels may provide Intel with an effective remedy if Hamidi’s messages are

defamatory or wrongfully interfere with Intel’s economic interests. (See maj.

opn., ante, at p. 3.) Additionally, the Legislature continues to study the problems

caused by bulk e-mails and other dubious uses of modern communication

technologies and may craft legislation that accommodates the competing concerns

in these sensitive and highly complex areas.

Accordingly, I join the majority in reversing the Court of Appeal’s






Candidate A finds the vehicles that candidate B has provided for his

campaign workers, and A spray paints the water soluble message, “Fight

corruption, vote for A” on the bumpers. The majority’s reasoning would find that

notwithstanding the time it takes the workers to remove the paint and the expense

they incur in altering the bumpers to prevent further unwanted messages,

candidate B does not deserve an injunction unless the paint is so heavy that it

reduces the cars’ gas mileage or otherwise depreciates the cars’ market value.

Furthermore, candidate B has an obligation to permit the paint’s display, because

the cars are driven by workers and not B personally, because B allows his workers

to use the cars to pick up their lunch or retrieve their children from school, or

because the bumpers display B’s own slogans. I disagree.

Intel has invested millions of dollars to develop and maintain a computer

system. It did this not to act as a public forum but to enhance the productivity of

its employees. Kourosh Kenneth Hamidi sent as many as 200,000 e-mail

messages to Intel employees. The time required to review and delete Hamidi’s

messages diverted employees from productive tasks and undermined the utility of

the computer system. “There may . . . be situations in which the value to the

owner of a particular type of chattel may be impaired by dealing with it in a

manner that does not affect its physical condition.” (Rest.2d Torts, § 218, com. h,

p. 422.) This is such a case.

The majority repeatedly asserts that Intel objected to the hundreds of

thousands of messages solely due to their content, and proposes that Intel seek


relief by pleading content-based speech torts. This proposal misses the point that

Intel’s objection is directed not toward Hamidi’s message but his use of Intel’s

property to display his message. Intel has not sought to prevent Hamidi from

expressing his ideas on his Web site, through private mail (paper or electronic) to

employees’ homes, or through any other means like picketing or billboards. But

as counsel for Intel explained during oral argument, the company objects to

Hamidi’s using Intel’s property to advance his message.

Of course, Intel deserves an injunction even if its objections are based

entirely on the e-mail’s content. Intel is entitled, for example, to allow employees

use of the Internet to check stock market tables or weather forecasts without

incurring any concomitant obligation to allow access to pornographic Web sites.

(Loving v. Boren (W.D.Okla. 1997) 956 F.Supp. 953, 955.) A private property

owner may choose to exclude unwanted mail for any reason, including its content.

(Rowan v. U.S. Post Office Dept. (1970) 397 U.S. 728, 738 (Rowan); Tillman v.

Distribution Systems of America Inc. (App. Div. 1996) 648 N.Y.S.2d 630, 635


The majority refuses to protect Intel’s interest in maintaining the integrity

of its own system, contending that: (1) Hamidi’s mailings did not physically

injure the system; (2) Intel receives many unwanted messages, of which Hamidi’s

are but a small fraction; (3) Intel must have contemplated that it would receive

some unwanted messages; and (4) Hamidi used the e-mail system for its intended

purpose, to communicate with employees.

Other courts have found a protectible interest under very similar

circumstances. In Thrifty-Tel v. Bezenek (1996) 46 Cal.App.4th 1559 (Thrifty-

Tel), the Court of Appeal found a trespass to chattels where the defendants used

another party’s access code to search for an authorization code with which they

could make free calls. The defendants’ calls did not damage the company’s


system in any way; they were a miniscule fraction of the overall communication

conducted by the phone network; and the company could have reasonably

expected that some individuals would attempt to obtain codes with which to make

free calls (just as stores expect shoplifters). Moreover, had the defendants

succeeded in making free calls, they would have been using the telephone system

as intended. (Id. at p. 1563.)

Because I do not share the majority’s antipathy toward property rights and

believe the proper balance between expressive activity and property protection can

be achieved without distorting the law of trespass, I respectfully dissent.



The majority endorses the view of the Court of Appeal dissent, and review

a finding of a trespass in this case as a radical decision that will endanger almost

every other form of expression. Contrary to these concerns, the Court of Appeal

decision belongs not to a nightmarish future but to an unremarkable past—a long

line of cases protecting the right of an individual not to receive an unwanted

message after having expressed that refusal to the speaker. It breaks no new legal

ground and follows traditional rules regarding communication.

It is well settled that the law protects a person’s right to decide to whom he

will speak, to whom he will listen, and to whom he will not listen. (Martin v. City

of Struthers (1943) 319 U.S. 141, 149 (Martin) [noting the “constitutional rights of

those desiring to distribute literature and those desiring to receive it, as well as

those who choose to exclude such distributors”].) As the United States Supreme

Court observed, “we have repeatedly held that individuals are not required to

welcome unwanted speech into their homes” (Frisby v. Schultz (1988) 487 U.S.

474, 485), whether the unwanted speech comes in the form of a door-to-door

solicitor (see Martin, at pp. 147-148), regular “snail” mail (Rowan, supra, 397


U.S. 728), radio waves (FCC v. Pacifica Foundation (1978) 438 U.S. 726), or

other forms of amplified sound (Kovacs v. Cooper (1949) 336 U.S. 77). (See

Frisby v. Schultz, at p. 485.)

Of course, speakers have rights too, and thus the result is a balancing:

speakers have the right to initiate speech but the listener has the right to refuse to

listen or to terminate the conversation. This simple policy thus supports Hamidi’s

right to send e-mails initially, but not after Intel expressed its objection.

Watchtower Bible and Tract Society v. Village of Stratton (2002) 536 U.S.

150 does not compel a contrary result. Watchtower follows Martin, supra, 319

U.S. 141, in holding that the government may not bar a speaker from a

homeowner’s door, but the homeowner surely may. The Martin court invalidated

an ordinance that banned all door-to-door soliciting (in that case the speech was

the noncommercial ideas of a religious sect), even at homes where the residents

wished to hear the speech. This exclusion “substitute[d] the judgment of the

community for the judgment of the individual householder.” (Martin, at

p. 144.) Instead, the court authorized the property owner to indicate his desire not

to be disturbed. “This or any similar regulation leaves the decision as to whether

distributers of literature may lawfully call at a home where it belongs—with the

homeowner himself.” (Id. at p. 148.) A speaker is entitled to speak with willing

listeners but not unwilling ones. “A city can punish those who call at a home in

defiance of the previously expressed will of the occupant . . . .” (Ibid., italics

added.) Watchtower, supra, 536 U.S. 150, reaffirmed the listener’s complete

autonomy to accept or reject offered speech.

Martin further recognized that the decisions regarding whether to accept a

particular message must be made by a nongovernmental actor, but not necessarily

by every single potential listener on an individual level. “No one supposes . . . that

the First Amendment prohibits a state from preventing the distribution of leaflets


in a church against the will of the church authorities.” (Martin, supra, 319 U.S. at

p. 143, italics added.) Unanimity among the congregation is not required. (See

also Church of Christ in Hollywood v. Superior Court (2002) 99 Cal.App.4th 1244

(Church of Christ).) The Supreme Court reaffirmed this rule in Lloyd Corp. v.

Tanner (1972) 407 U.S. 551 (Lloyd) and Hudgens v. NLRB (1976) 424 U.S. 507,

where private shopping mall owners validly excluded speakers from their malls.

The owners could make this decision, even though they were not the “intended

and actual recipients of [the speakers’] messages.” (Maj. opn., ante, at p. 28.) The

owners had no obligation to obtain the agreement of every individual store within

the mall, or of every employee within every store in the mall.1


The majority distinguishes Church of Christ on its facts, by asserting that a

former church member could be barred from church property because she had a
“tangible presence” on the church’s property. (Maj. opn., ante, at p. 27.) But the
majority does not refute the legal point that “the mere judicial enforcement of
neutral trespass laws by the private owner of property does not alone render it a
state actor.” (CompuServe, Inc. v. Cyber Promotions, Inc. (S.D. Ohio 1997) 962
F.Supp. 1015, 1026 (CompuServe).)

The First Amendment does not shield Hamidi’s speech, and the majority’s

authorities do not suggest it does. On the contrary, the high court recognized that
the First Amendment does not preclude generally applicable laws, even where
they incidentally restrict speech. (Cohen v. Cowles Media Co. (1991) 501 U.S.
663, 669.) There is thus no right to intrude upon privately owned property simply
to generate speech. (Ibid.)

The majority cites New York Times Co. v. Sullivan (1964) 376 U.S. 254, as

well as N.A.A.C.P. v. Claiborne Hardware Co. (1982) 458 U.S. 886, and Madsen
v. Women’s Health Center, Inc.
(1994) 512 U.S. 753, none of which are apposite.
In these cases, speakers enjoyed First Amendment protection when they spoke to
the public through a newspaper advertisement (with the newspaper’s consent) or a
protest on a public street, a traditional public forum. (Schneider v. State (1939)
308 U.S. 147.) If Hamidi had similarly expressed his anti-Intel feelings in a
newspaper advertisement or from a public street, these authorities would be on
point. By contrast, nothing in New York Times entitles a computer hacker to alter
an online newspaper’s content so that it expresses the hacker’s opinions against
the paper’s wishes.

(Footnote continued on next page.)


This rule applies not only to real property but also to chattels like a

computer system. In Loving v. Boren, supra, 956 F.Supp. at page 955, the court

held that the University of Oklahoma could restrict the use of its computer system

to exclude pornographic messages, notwithstanding the contrary preferences of

any individual faculty member (or student). Intel may similarly control the use of

its own property, regardless of any specific employee’s contrary wishes. (See also

Bus. & Prof. Code, § 17538.4, subd. (h).) In any event, Hamidi had ample

opportunity in his preobjection e-mails to direct employees to his Web site or

request the employees’ private e-mail addresses. He thus continues to use the

internal Intel network to speak to an unreceptive audience.2

Accordingly, all that matters is that Intel exercised the right recognized in

Martin to exclude unwanted speech. The instant case is considerably easier than

(Footnote continued from previous page.)

Intel’s right to use reasonable force (see maj. opn., ante, at p. 9), to prevent

interference with its property distinguishes this case from the majority’s United
States Supreme Court precedents. Whereas Intel could attempt to block the
unwanted messages, Sullivan, who claimed to have been libeled by the newspaper,
could not have burned the newspapers to prevent their publication, nor could the
targets of the public protesters in Claiborne Hardware or Madsen have driven
them from the public streets where they were speaking. Contrariwise, Intel, as the
majority does not dispute, would have been allowed to suppress Hamidi’s
messages if it had been able to do so.

Hamidi required employees to take affirmative steps to remove themselves

from the mailing list. Not only might some employees have declined to do so
because such removal might involve a greater burden than simply deleting the
unwanted message, but they also might reasonably have assumed that such
requests could be counterproductive. (Whang, An Analysis of California’s
Common and Statutory Law Dealing with Unsolicited Commercial Electronic
Mail: An Argument for Revision
(2000) 37 San Diego L.Rev. 1201, 1205-1206
(Whang).) “ ‘Don’t respond [to spam]! Don’t ask them to “take you off a list.”
People who respond—even negatively—are viewed as Grade A targets. You will
probably get more junk than ever.’ ” (Id. at p. 1206 & fn. 24, quoting Campbell,
Waging War on Internet Spammers, Toronto Star (Aug. 26, 1999) p. L5.)


Lloyd and Hudgens in light of the severe infringement on Intel’s autonomy.

Whereas the mall owners had been asked merely to allow others to speak, Intel,

through its server, must itself actively “participate in the dissemination of an

ideological message by displaying it on . . . private property in a manner and for

the express purpose that it be observed and read . . . .” (Wooley v. Maynard (1977)
430 U.S. 705, 713.)

The principle that a speaker’s right to speak to a particular listener exists for

only so long as the listener wishes to listen applies also to mail delivery. (Rowan,

supra, 397 U.S. 728.) In Bolger v. Youngs Drug Products Corp. (1983) 463 U.S.

60 (Bolger), the court struck down a law barring the mailing of information

regarding contraception because the government was deciding which messages

could be delivered. But Bolger cited Rowan with approval—a case that upheld the

procedure by which private parties could refuse to receive specific materials.

“[A] sufficient measure of individual autonomy must survive to permit every

householder to exercise control over unwanted mail.” (Rowan, supra, 397 U.S.

at p. 736.) Citing Martin, supra, 319 U.S. 141, Rowan held “a mailer’s right to

communicate must stop at the mailbox of an unreceptive addressee . . . . [¶] . . .

[¶] To hold less would tend to license a form of trespass.” (Rowan, at pp.

736-737, italics added.) Furthermore, Bolger expressly contemplated that

some family members would exclude materials on behalf of others; the right to

accept or reject speech thus belonged to the household, not each individual

member. (Bolger, at p. 73.)

The pertinent precedent for an anti-spam case is Rowan, which involved

private action, not Bolger, which involved governmental action. “ ‘[H]ere we are

not dealing with a government agency which seeks to preempt in some way the

ability of a publisher to contact a potential reader; rather, we are dealing with a

reader who is familiar with the publisher’s product, and who is attempting to


prevent the unwanted dumping of this product on his property.” (CompuServe,

supra, 962 F.Supp. at p. 1027, quoting Tillman, supra, 648 N.Y.S.2d at p. 635.)

Rowan further held the recipient could reject a message for any subjective

reason, including annoyance or discomfort at its content. (Rowan, supra, 397 U.S.

at p. 738.) A private actor thus has no obligation to hear all messages just because

he chooses to hear some. A homeowner’s desire to receive letters from relatives

or friends does not compel him to accept offensive solicitations. It is therefore

possibly true but certainly immaterial that Intel might have expected that some

unwanted messages would be sent to its employees. A store that opens its doors to

the public should reasonably expect some individuals will attempt to shoplift, but

the store does not thereby incur an obligation to accept their presence and the

disruption they cause.

If we did create an “accept one, accept all” rule, whereby a party’s

acceptance of outside mail abrogates the right to exclude any messages, the result

would likely be less speech, not more. Courts have recognized the seeming

paradox that permitting the exclusion of speech is necessary to safeguard it. “It is

ironic that if defendants were to prevail on their First Amendment arguments, the

viability of electronic mail as an effective means of communication for the rest of

society would be put at risk.” (CompuServe, supra, 962 F.Supp. at p. 1028.) The

Court of Appeal below likewise observed that employers’ tolerance for reasonable

personal use of computers “would vanish if they had no way to limit such personal

usage of company equipment.” (Cf. Miami Herald Publishing Co. v. Tornillo

(1974) 418 U.S. 241, 256 [compulsory fair reply law would deter newspaper from

speaking to avoid forced expression of disagreeable speech].) Furthermore,

merely permitting exclusion may be insufficient absent a mechanism for

enforcement. If spamming expands to a new volume of activity, “[t]he cost

increases that would result from a massive increase in volume could even lead


many sites to discontinue supporting standard e-mail altogether. Within a few

years, e-mail may no longer be the near-universal method for communicating with

people via the Internet that it is today.” (Sorkin, Technical and Legal Approaches

to Unsolicited Electronic Mail (2001) 35 U.S.F. L.Rev. 325, 338-339, fn. omitted


The majority expresses its agreement with the dissent below, which found

that if the lost productivity of Intel’s employees serves as the requisite injury,

“then every unsolicited communication that does not further the business’s

objectives (including telephone calls) interferes with the chattel. . . . [¶] . . . [¶]

. . . Under Intel’s theory, even lovers’ quarrels could turn into trespass suits by

reason of the receipt of unsolicited letters or calls from the jilted lover. Imagine

what happens after the angry lover tells her fiancé not to call again and violently

hangs up the phone. Fifteen minutes later the phone rings. Her fiancé wishing to

make up? No, trespass to chattel.” But just as private citizens may deny access to

door-to-door solicitors or mailers, they may also maintain the integrity of their

phone system from callers they wish to exclude. A telephone, no less than an

envelope, may be an instrument of trespass. (See Thrifty-Tel, Inc., supra, 46

Cal.App.4th at pp. 1566-1567.)

Individuals may not commandeer the communications systems of unwilling

listeners, even if the speakers are jilted lovers who wish to reconcile. (People v.

Miguez (Crim. Ct. 1990) 556 N.Y.S.2d 231.)3 The Miguez defendant repeatedly

left messages4 on the complainant’s answering machine and pager, “interrupting


New York further proscribes such conduct as criminal. (People v. Miguez,

supra, 556 N.Y.S.2d 231.)

Some of the messages reflected a desire to reconcile: “ ‘ “Please don’t hurt

me anymore. You’ve hurt me enough, I still love you.” ’ ” A later call stated,

(Footnote continued on next page.)


him in his professional capacity as a doctor.” (Id. at p. 232.) It was the disruptive

volume (not the specific content) of calls from which the complainant was entitled

to relief. Similarly, an individual could not lawfully telephone a police department

28 times in 3 hours and 20 minutes to inquire about a civil matter where the police

told him not to call because he was disrupting police operations. (People v. Smith

(App.Div. 1977) 392 N.Y.S.2d 968, 969-970.)

The law on faxes is even stricter. As faxes shift the costs of speech from

the speaker to the listener, senders of commercial e-mail must obtain prior consent

from the recipient. (47 U.S.C. § 227.) Likewise, the users of automated telephone

dialers also must obtain prior consent where they result in costs to the recipient.

(47 U.S.C. § 227(b)(1)(A)(iii); Missouri ex. rel. Nixon v. American Blast Fax, Inc.

(8th Cir. 2003) 323 F.3d 649, 657 (Blast Fax).) Because e-mail permits mass

unwanted communications without the sender having to bear the costs of postage

or labor, there is a much greater incentive for sending unwanted e-mail, and thus

the potential volume of unwanted e-mail may create even greater problems for

recipients than the smaller volume of unwanted faxes. (Whang, supra, 37

San Diego L.Rev. at p. 1216 & fn. 112.) In any event, honoring the wishes of a

party who requests the cessation of unwanted telecommunications, whether by

phone, fax or e-mail, does nothing more than apply Martin to today’s technology.

(Shannon, Combating Unsolicited Sales Calls: The “Do-Not-Call” Approach to

Solving the Telemarketing Problem (2001) 27 J. Legis. 381, 394.)

Therefore, before the listener objects, the speaker need not fear he is

trespassing. Afterwards, however, the First Amendment principle of respect for

(Footnote continued from previous page.)

“ ‘ “Eddie I want to give you my number; even if you don’t call me I want you to
have it.” ’ ” (People v. Miguez, supra, 556 N.Y.S.2d. at p. 232.)


personal autonomy compels forbearance. “The Court has traditionally respected

the right of a householder to bar, by order or notice, [speakers] from his property.

See Martin v. City of Struthers, supra, . . . . In this case the mailer’s right to

communicate is circumscribed only by an affirmative act of the addressee giving

notice that he wishes no further mailings from that mailer.” (Rowan, supra, 397

U.S. at p. 737, italics added.) Speakers need not obtain affirmative consent before

speaking, and thus have no reason to fear unexpected liability for trespass, but

they must respect the decisions of listeners once expressed. The First Amendment

protects the right not to listen just as it protects the right to speak.


Intel had the right to exclude the unwanted speaker from its property, which

Hamidi does not dispute; he does not argue that he has a to right force unwanted

messages on Intel. The instant case thus turns on the question of whether Intel

deserves a remedy for the continuing violation of its rights. I believe it does, and

as numerous cases have demonstrated, an injunction to prevent a trespass to

chattels is an appropriate means of enforcement.

The majority does not find that Hamidi has an affirmative right to have

Intel transmit his messages, but denies Intel any remedy. Admittedly, the case

would be easier if precise statutory provisions supported relief, but in the rapidly

changing world of technology, in which even technologically savvy providers like

America Online and CompuServe are one step behind spammers, the Legislature

will likely remain three or four steps behind. In any event, the absence of a

statutory remedy does not privilege Hamidi’s interference with Intel’s property.

Nor are content-based speech torts adequate for violations of property rights

unrelated to the speech’s content. In any event, the possibility of another avenue

for relief does not preclude an injunction for trespass to chattels.


The majority denies relief on the theory that Intel has failed to establish the

requisite actual injury. As discussed, post, however, the injunction was properly

granted because the rule requiring actual injury pertains to damages, not equitable

relief, and thus courts considering comparable intrusions have provided injunctive

relief without a showing of actual injury. Furthermore, there was actual injury as

(1) Intel suffered economic loss; (2) it is sufficient for the injury to impair the

chattel’s utility to the owner rather than the chattel’s market value; and (3) even in

the absence of any injury to the owner’s utility, it is nevertheless a trespass where

one party expropriates for his own use the resources paid for by another.

Harmless Trespasses to Chattels May be Prevented

Defendant Hamidi used Intel’s server in violation of the latter’s demand to

stop. This unlawful use of Intel’s system interfered with the use of the system by

Intel employees. This misconduct creates a cause of action. “[I]t is a trespass to

damage goods or destroy them, to make an unpermitted use of them, or to move

them from one place to another.” (Prosser & Keeton on Torts (5th ed. 1984)

Trespass to Chattels, § 14, p. 85, fns. omitted & italics added.) “[T]he unlawful

taking away of another’s personal property, the seizure of property upon a

wrongful execution, and the appropriation of another’s property to one’s own use,

even for a temporary purpose, constitute trespasses, although a mere removal of

property without injuring it is not a trespass when done by one acting rightfully.”

(7 Speiser et al., American Law of Torts (1990) Trespass, § 23:23, p. 667 (Speiser)

fns. omitted & italics added.)

Regardless of whether property is real or personal, it is beyond dispute that

an individual has the right to have his personal property free from interference.

There is some division among authorities regarding the available remedy,

particularly whether a harmless trespass supports a claim for nominal damages.


The North Carolina Court of Appeal has found there is no damage requirement

for a trespass to chattel. (See Hawkins v. Hawkins (N.C.Ct.App. 1991) 400

S.E.2d 472, 475.) “A trespass to chattels is actionable per se without any proof of

actual damage. Any unauthorized touching or moving of a chattel is actionable at

the suit of the possessor of it, even though no harm ensues.” (Salmond &

Heuston, The Law of Torts (21st ed. 1996) Trespass to Goods, § 6.2, p. 95, fns.

omitted.) Several authorities consider a harmless trespass to goods actionable per

se only if it is intentional. (Winfield & Jolowicz on Torts (10th ed. 1975)

Trespass to Goods, p. 403 (Winfield & Jolowicz); Clerk & Lindsell on Torts

(17th ed. 1995) ¶ 13-159, p. 703.) The Restatement Second of Torts, section 218,

which is less inclined to favor liability, likewise forbids unauthorized use and

recognizes the inviolability of personal property. However, the Restatement

permits the owner to prevent the injury beforehand, or receive compensation

afterward, but not to profit from the trespass through the remedy of damages

unrelated to actual harm, which could result in a windfall. (Thrifty-Tel, supra, 46

Cal.App.4th at p. 1569; Whang, supra, 37 San Diego L.Rev. at p. 1223.) “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 intermeddlings with the chattel. . . . Sufficient legal

protection of the possessor’s interest in the mere inviolability of his chattel is

afforded by his privilege to use reasonable force to protect his possession against

even harmless interference.” (Rest.2d Torts, § 218, com. e, pp. 421-422, italics

added.) Accordingly, the protection of land and chattels may differ on the

question of nominal damages unrelated to actual injury. The authorities agree,

however, that (1) the chattel is inviolable, (2) the trespassee need not tolerate

even harmless interference, and (3) the possessor may use reasonable force to

prevent it. Both California law and the Restatement authorize reasonable force


regardless of whether the property in question is real or personal. (Civ. Code,

§ 51; Rest.2d Torts, § 77.)

The law’s special respect for land ownership supports liability for damages

even without actual harm. (Speiser, supra, § 23:1, at p. 592.) By contrast, one

who suffers interference with a chattel may prevent the interference before or

during the fact, or recover actual damages (corresponding to the harm suffered),

but at least according to the Restatement, may not recover damages in excess of

those suffered. But the Restatement expressly refutes defendant’s assertion that

only real property is inviolable. From the modest distinction holding that only

victims of a trespass to land may profit in the form of damages exceeding actual

harm, defendant offers the position that only trespasses to land may be prevented.

The law is to the contrary; numerous cases have authorized injunctive relief to

safeguard the inviolability of personal property.

The law favors prevention over posttrespass recovery, as it is permissible to

use reasonable force to retain possession of a chattel but not to recover it after

possession has been lost. (See 1 Dobbs, The Law of Torts (2001) §§ 76, 81,

pp. 170, 186; see also Deevy v. Tassi (1942) 21 Cal.2d 109, 118-119.)

Notwithstanding the general rule that injunctive relief requires a showing of

irreparable injury (5 Witkin, Cal. Procedure (4th ed. 1997) Pleading, § 782,

p. 239), Witkin also observes there are exceptions to this rule where injunctive

relief is appropriate; these include repetitive trespasses. (Id., § 784, p. 242.) The

first case cited in that section, Mendelson v. McCabe (1904) 144 Cal. 230

(Mendelson), is apposite to our analysis.

In entering McCabe’s property, Mendelson exceeded the scope of the

consent he received to do so. McCabe had granted Mendelson the right to pass

through his property on condition that Mendelson close the gates properly, which

he did not do. (Mendelson, supra, 144 Cal. at pp. 231-232.) McCabe “did not


allege that any actual damage had been caused by the acts of [Mendelson] . . . in

leaving the gates open.” (Id. at p. 232.) After finding that Mendelson planned to

continue his conduct over McCabe’s objection, we authorized injunctive relief.

(Id. at pp. 233-234.) Our analysis in Mendelson applies here as well. “The right

to an injunction is not always defeated by the mere absence of substantial damage

from the acts sought to be enjoined. The acts of the plaintiff in leaving the gates

open, if persisted in as he threatened, will constitute a continual invasion of the

right of the defendant to maintain the gates . . . . Moreover, the only remedy, other

than that of an injunction, for the injury arising from such continued trespass,

would be an action against the plaintiff for damages upon each occasion when he

left the gates open. The damage in each case would be very small, probably

insufficient to defray the expenses of maintaining the action not recoverable as

costs. Such remedy is inadequate and would require numerous petty suits, which

it is not the policy of the law to encourage.” (Id. at pp. 232-233.)

Our decision thus noted that injunctive relief was proper, regardless of

actual injury (1) if it is necessary to protect the trespassee’s right to control his

property, or (2) if suits for damages are impractical, because no individual suit

would be worthwhile. Accordingly, we reiterated the rule that “ ‘[a] trespass of a

continuing nature, whose constant recurrence renders the remedy at law

inadequate, unless by a multiplicity of suits, affords sufficient ground for relief.’ ”

(Mendelson, supra, 144 Cal. at p. 233.) Both Mendelson grounds support an

injunction here.

“Injunction is a proper remedy against threatened repeated acts of trespass

. . . particularly where the probable injury resulting therefrom will be ‘beyond


any method of pecuniary estimation,’ and for this reason irreparable.”5 (Uptown

Enterprises v. Strand (1961) 195 Cal.App.2d 45, 52; see also id. at p. 52 [an

otherwise lawful “entry for the purpose of harassing the owner, giving his

business a bad reputation . . . or unjustifiably interfering with the business

relations between him and his patrons is unauthorized, wrongful and

actionable”].) Although Mendelson and Uptown Enterprises concerned real

property, the principles of safeguarding a party’s possessory interest in property

and of not encouraging repetitive litigation apply no less to trespasses to chattels.

Accordingly, several courts have issued injunctive relief to prevent interference

with personal property.

In 1996, the Appellate Division of the New York Supreme Court

considered the claim of plaintiff Tillman, who sought to enjoin the unwanted

delivery of a newspaper onto his property. (Tillman, supra, 648 N.Y.S.2d 630.)

He offered no specific critique of the newspaper’s content, observing only

“ ‘[t]here is no reason that we have to clean up [defendant’s] mess.’ ” (Id. at

p. 632.) Citing Rowan, Martin, and Lloyd, the court rejected the defendants’

argument “that there is nothing a homeowner can do to stop the dumping on his or

her property of pamphlets or newspapers, no matter how offensive they might be,”

and instead upheld Tillman’s right to prevent the mail’s delivery, regardless of

whether his objection was due to the quantity (volume) or quality (content) of the


The majority asserts Intel was not deprived of its computers “for any

measurable length of time” (maj. opn., ante, at p. 10), which supposedly fits this
case within the rule that a “ ‘mere momentary or theoretical’ ” deprivation is
insufficient to establish a trespass to chattel (maj. opn., ante, at p. 16). There is a
chasm between the two descriptions. The time needed to identify and delete
200,000 e-mail messages is not capable of precise estimation, but it is hardly
theoretical or momentary. Most people have no idea of how many words they
spoke yesterday, but that does not render the figure de minimis.


messages. (Tillman, at p. 636.) In authorizing injunctive relief, the Tillman court

found no need to quantify the actual damage created by the delivery; it merely

noted that the homeowner should not be forced either “to allow such unwanted

newspapers to accumulate, or to expend the time and energy necessary to gather

and to dispose of them.” (Ibid.) Subsequent courts have extended this policy to

the delivery of e-mail as well.

The CompuServe court followed Tillman in authorizing an injunction to

prevent the delivery of unwanted e-mail messages. (CompuServe, supra, 962

F.Supp. 1015.) The majority summarily distinguishes CompuServe and its

progeny by noting there the “plaintiff showed, or was prepared to show, some

interference with the efficient functioning of its computer system.” (Maj. opn.,

ante, at p. 12.) But although CompuServe did note the impairment imposed by the

defendant’s unsolicited e-mail, this was not part of its holding. Just before

beginning its analysis, the court summarized its ruling without mentioning

impairment. “[T]his Court holds that where defendants engaged in a course of

conduct of transmitting a substantial volume of electronic data in the form of

unsolicited e-mail to plaintiff’s proprietary computer equipment, where defendants

continued such practice after repeated demands to cease and desist, and where

defendants deliberately evaded plaintiff’s affirmative efforts to protect its

computer equipment from such use, plaintiff has a viable claim for trespass to

personal property and is entitled to injunctive relief to protect its property.”

(CompuServe, supra, 962 F.Supp. at p. 1017.) The cited criteria apply fully to

Hamidi’s conduct. Likewise, the conclusion of CompuServe’s analysis fully

applies here: “Defendants’ intentional use of plaintiff’s proprietary computer

equipment exceeds plaintiff’s consent and, indeed, continued after repeated

demands that defendants cease. Such use is an actionable trespass to plaintiff’s

chattel.” (Id. at p. 1027.)


Post-CompuServe case law has emphasized that unauthorized use of

another’s property establishes a trespass, even without a showing of physical

damage. “Although eBay appears unlikely to be able to show a substantial

interference at this time, such a showing is not required. Conduct that does

not amount to a substantial interference with possession, but which consists

of intermeddling with or use of another’s personal property, is sufficient to

establish a cause of action for trespass to chattel.” (eBay, Inc. v. Bidder’s

Edge, Inc. (N.D.Cal. 2000) 100 F.Supp.2d 1058, 1070.)6 “While the eBay

decision could be read to require an interference that was more than

negligible, . . . this Court concludes that eBay, in fact, imposes no such

requirement. Ultimately, the court in that case concluded that the defendant’s

conduct was sufficient to establish a cause of action for trespass not because

the interference was ‘substantial’ but simply because the defendant’s conduct

amounted to ‘use’ of Plaintiff’s computer.” (Oyster Software, Inc. v. Forms

Processing, Inc. (N.D.Cal., Dec. 6, 2001, No. C-00-0724 JCS) 2001

WL1736382 at *13.) An intruder is not entitled to sleep in his neighbor’s

car, even if he does not chip the paint.

Hamidi concedes Intel’s legal entitlement to block the unwanted messages.

The problem is that although Intel has resorted to the cyberspace version of

reasonable force, it has so far been unsuccessful in determining how to resist the

unwanted use of its system. Thus, while Intel has the legal right to exclude


The majority asserts eBay does require impairment, because the opinion

noted that the wide replication of the defendant’s conduct would likely impair the
functioning of the plaintiff’s system. (Maj. opn., ante, at pp. 13-14.) Of course,
the “wide replication” of Hamidi’s conduct would likely impair Intel’s operating
system. Accordingly, a diluted “likely impairment through wide replication”
standard would favor Intel, not Hamidi.


Hamidi from its system, it does not have the physical ability. It may forbid

Hamidi’s use, but it cannot prevent it.

To the majority, Hamidi’s ability to outwit Intel’s cyber defenses justifies

denial of Intel’s claim to exclusive use of its property. Under this reasoning, it is

not right but might that determines the extent of a party’s possessory interest.

Although the world often works this way, the legal system should not.

Intel Suffered Injury

Even if CompuServe and its progeny deem injury a prerequisite for

injunctive relief, such injury occurred here. Intel suffered not merely an affront to

its dignitary interest in ownership but tangible economic loss. Furthermore,

notwithstanding the calendar’s doubts, it is entirely consistent with the

Restatement and case law to recognize a property interest in the subjective utility

of one’s property. Finally, case law further recognizes as actionable the loss that

occurs when one party maintains property for its own use and another party uses

it, even if the property does not suffer damage as a result.

Intel Suffered Economic Loss

Courts have recognized the tangible costs imposed by the receipt of

unsolicited bulk e-mail (UBE).7 Approximately 10 percent of the cost of Internet

access arises from the delivery of UBE, because networks must expand to ensure

their functioning will not be disturbed by the unwanted messages and must design


There is considerable debate regarding whether “spam” encompasses only

unsolicited commercial e-mail (UCE) or all UBE, regardless of its commercial
nature. (Sorkin, supra, 35 U.S.F. L.Rev at pp. 333-335.) Because parties object to
spam due to its volume rather than the sender’s motivation, UBE is a preferable
definition. (Id. at p. 335.) Moreover, as our decision in Kasky v. Nike, Inc. (2002)
27 Cal.4th 939 made plain, there is no bright-line distinction between commercial
and noncommercial speech. (See also City of Cincinnati v. Discovery Network,
(1993) 507 U.S. 410, 419.)


software to reduce the flood of spam. (Whang, supra, 37 San Diego L.Rev. at pp.

1203 & fn. 10, 1207 & fn. 37.) Especially where bulk e-mailers mask the true

content of their messages in the “header” (as Hamidi did), there is a shift in costs

from sender to recipient that resembles “ ‘sending junk mail with postage due or

making telemarketing calls to someone’s pay-per-minute cellular phone.’ ”

(Ferguson v. Friendfinders (2002) 94 Cal.App.4th 1255, 1268 (Ferguson), quoting

State v. Heckel (Wash. 2001) 24 P.3d 404, 410 (Heckel).) E-mail may be cheaper

and more efficient than other means of communication, but “[t]here is no

constitutional requirement that the incremental cost of sending massive quantities

of unsolicited [messages] must be borne by the recipients.” (CompuServe, supra,

962 F.Supp. at p. 1026.)

The Ferguson court noted the tangible economic loss to employers created

by unwanted e-mail. “Individuals who receive UCE can experience increased

Internet access fees because of the time required to sort, read, discard, and attempt

to prevent future sending of UCE. If the individual undertakes this process at

work, his or her employer suffers the financial consequences of the wasted time.”

(Ferguson, supra, 94 Cal.App.4th at p. 1267, italics added.) CompuServe likewise

observed the recipient of unwanted e-mail must “sift through, at his expense, all of

the messages in order to find the ones he wanted or expected to receive.”

(CompuServe, supra, 962 F.Supp. at p. 1023, italics added.) Unwanted messages

also drain the equipment’s processing power, and slow down the transfers of

electronic data. (Id. at pp. 1022, 1028.)

The economic costs of unwanted e-mail exist even if Intel employees,

unlike CompuServe subscribers, do not pay directly for the time they spend on the

Internet. No such direct costs appear here, only the opportunity costs of lost time.

But for Intel, “time is money” nonetheless. One justification for the strict rule

against unsolicited faxes is that they “shift costs to the recipients who are forced to


contribute ink, paper, wear on their fax machines, as well as personnel time.”

(Blast Fax, supra, 323 F.3d at p. 652, italics added.) (In re Johnny M. (2002) 100

Cal.App.4th 1128 [vandalism that diverted salaried employees from ordinary

duties caused economic loss through lost work product].)

Courts have also recognized the harm produced by unwanted paper mail.

Mail sent in violation of a request to stop creates the “burdens of scrutinizing the

mail for objectionable material and possible harassment.” (Rowan, supra, 397

U.S. at p. 735, italics added.) The Tillman court thus held a newspaper could not

compel unwilling recipients “to spend their own time or money unwillingly

participating in the distribution process by which a newspaper travels from the

printing press to its ultimate destination, i.e., disposal.” (Tillman, supra, 648

N.Y.S.2d at p. 636, italics added.)8

Although Hamidi claims he sent only six e-mails, he sent them to between

8,000 and 35,000 employees, thus sending from 48,000 to 210,000 messages.

Since it is the effect on Intel that is determinative, it is the number of messages

received, not sent, that matters. In any event, Hamidi sent between 48,000 and

210,000 messages; the “six” refers only to the number of distinct texts Hamidi

sent. Even if it takes little time to determine the author of a message and then

delete it, this process, multiplied hundreds of thousands of times, amounts to a

substantial loss of employee time, and thus work product. If Intel received

200,000 messages, and each one could be skimmed and deleted in six seconds, it

8 Citing


Bolger, supra, 463 U.S. at page 72, for the proposition that the

Constitution imposes on recipients the burden of disposing of unwanted mail, is
inapposite because, as explained in part I, ante, Bolger involved the government’s
objections to the delivery, not the objection of a nongovernmental actor like Intel,
which, under Rowan, supra, 397 U.S at pages 736-738, may exclude unwanted


would take approximately 333 hours, or 42 business days, to delete them all. In

other words, if Intel hired an employee to remove all unwanted mail, it would take

that individual two entire months to finish. (Cf. Tubbs v. Delk (Mo.Ct.App. 1996)

932 S.W.2d 454, 456 (Tubbs) [deprivation of access to chattel for “ ‘less than five

minutes’ ” constitutes actionable trespass, although found justified there].)

Intel’s Injury is Properly Related to the Chattel

The majority does not dispute that Intel suffered a loss of work product as a

matter of fact, so much as it denies that this loss may constitute the requisite injury

as a matter of law. According to the majority, the reduced utility of the chattel to

the owner does not constitute a sufficiently cognizable injury, which exists only

where the chattel itself suffers injury, i.e., its “market value” falls. The

Restatement and related case law are to the contrary.

The Restatement recognizes that the measure of impairment may be

subjective; a cognizable injury may occur not only when the trespass reduces the

chattel’s market value but also when the trespass affects its value to the owner.

“In the great majority of cases, the actor’s intermeddling with the chattel impairs

the value of it to the possessor, as distinguished from the mere affront to his

dignity as possessor, only by some impairment of the physical condition of the

chattel. There may, however, be situations in which the value to the owner of a

particular type of chattel may be impaired by dealing with it in a manner that does

not affect its physical condition.” (Rest.2d Torts, § 218, com. h, p. 422.)

The Restatement goes on to explain that A’s using B’s toothbrush could

extinguish its value to B. The brushing constitutes a trespass by impairing the

brush’s subjective value to the owner rather than its objective market value.

(Rest.2d Torts, § 218, com. h, p. 422.) Moreover, there can be a trespass even


though the chattel is used as intended—to brush teeth—if it is used by an

unwanted party.

As the Court of Appeal’s opinion below indicated, interference with an

owner’s ability to use the chattel supports a trespass. The opinion recalled the

rule, which dates back almost 400 years, holding that chasing an owner’s animal

amounts to a trespass to chattels. (See, e.g., Farmer v. Hunt (1610) 123 Eng. Rep.

766; Winfield & Jolowicz, supra, Trespass to Goods, p. 403.) These authorities

do not require injury or damage to the animal; the interference with the owner’s

use of the animal suffices to create a trespass. (Winfield & Jolowicz, at p. 40.)

Interference is actionable if it “deprives the possessor of the use of that chattel.”

(Fleming, The Law of Torts (9th ed. 1998) Trespass, § 4.1, p. 598.) Moreover,

such interference need not permanently deny the owner the ability to use the

chattel—mere delay is enough. (See Tubbs, supra, 932 S.W.2d at p. 456.)

A contemporary version of this interference would occur if a trespasser

unplugged the computers of the entire Intel staff and moved them to a high shelf in

each employee’s office or cubicle. The computers themselves would suffer no

damage, but all 35,000 employees would need to take the time to retrieve their

computers and restart them. This would reduce the computers’ utility to Intel, for,

like the chased animals, they would not be available for immediate use. If the

chasing of a few animals supports a trespass, then so does even minimal

interference with a system used by 35,000 individuals.

CompuServe is in accord, as it observed how a bundle of unwanted

messages decreased the utility of the server. (CompuServe, supra, 962 F.Supp. at

p. 1023.) Here, Intel maintains a possessory interest in the efficient and

productive use of its system—which it spends millions of dollars to acquire and

maintain. Hamidi’s conduct has impaired the system’s optimal functioning for

Intel’s business purposes. As the Restatement supports liability where “harm is


caused to . . . some . . . thing in which the possessor has a legally protected

interest” (Rest.2d Torts, § 218, subd. (d)), Hamidi has trespassed upon Intel’s


The Unlawful Use of Another’s Property is a Trespass, Regardless of

Its Effect on the Property’s Utility to the Owner

Finally, even if Hamidi’s interference did not affect the server’s utility to

Intel, it would still amount to a trespass. Intel has poured millions of dollars into a

resource that Hamidi has now appropriated for his own use. As noted above, “the

appropriation of another’s property to one’s own use, even for a temporary

purpose, constitute[s] [a] trespass[].” (Speiser, supra, § 23:23, p. 667, fn.

omitted.) The use by one party of property whose costs have been paid by another

amounts to an unlawful taking of those resources—even if there is no unjust

enrichment by the trespassing party.

In Buchanan Marine Inc. v. McCormack Sand Co. (E.D.N.Y. 1990) 743

F.Supp. 139 (Buchanan), the plaintiff built and maintained mooring buoys for use

by its own tugboats. Defendants’ barges used the buoy over plaintiff’s objection.

(Id. at pp. 140-141.) The federal district court found such unlawful use could

constitute a trespass to chattels (if the facts were proved), and thus denied the

defendants’ motion for summary judgment. “[D]efendants’ meddling with [the

buoy] is either a trespass to a chattel or perhaps a conversion for which [plaintiff]

may seek relief in the form of damages and an injunction.” (Id. at pp. 141-142.)

There was an allegation of damage (to plaintiff’s barge, not the buoy itself), which

could support a claim for damages, but this was not a prerequisite for injunctive

relief. Even if defendants did not injure the buoys in any way, they still had no

right to expropriate plaintiff’s property for their own advantage.


The instant case involves a similar taking. Intel has paid for thousands of

computers, as well as the costs of maintaining a server.9 Like the Buchanan

defendants, Hamidi has likewise acted as a free rider in enjoying the use of not

only Intel’s computer system but the extra storage capacity needed to

accommodate his messages. Furthermore, Intel’s claim, which does not object to

Hamidi’s speaking independently,10 only to his use of Intel’s property, resembles

that of the Buchanan plaintiff who “has not sought to prevent others from placing

their own mooring buoys in the Harbor,” but only the use of the plaintiff’s

property.11 (Buchanan, supra, 743 F.Supp. at p. 142.) Hamidi has thus

unlawfully shifted the costs of his speaking to Intel. (Ferguson, supra, 94

Cal.App.4th at p. 1268; Blast Fax, supra, 323 F.3d at p. 652; Heckel, supra, 24

P.3d at p. 410.)

Moreover, even such free ridership is not necessary to establish a trespass

to chattels. Had the Thrifty-Tel defendants succeeded in making free telephone

calls without authorization, they would stand in the same position as the Buchanan


In fact, Intel pays to maintain a high capacity to ensure that the system does

not crash (or slow down); if Intel had not preempted such harm, there is no dispute
that Hamidi would be liable for damages. As Professor Epstein cogently observes,
Intel is thus being penalized for engaging in preemptive self-help. According to
the majority, Intel would do better by saving its money and collecting damages
after a crash/slowdown.

Intel does not object to Hamidi’s transmitting the same message through his

Web site, e-mail to employees’ home computers, snail mail to their homes,
distribution of materials from outside the company’s gates, or any other
communication that does not conscript Intel’s property into Hamidi’s service.
Intel does object to the use of its property, regardless of its message. Although
Intel objected that Hamidi sent antagonistic messages, Intel would presumably
also object if Hamidi sent “blank” messages that slowed down both the Intel
system and the employees who use it.

As with the hypothetical toothbrush, the Buchanan defendants used the

buoy for its intended use. (Buchanan, supra, 743 F.Supp. at p. 140.)


defendants. But the record does not show they ever succeeded in making calls for

which another subscriber (or the phone company itself) would have to pay. Thus,

neither injury to the trespassee nor benefit to the trespasser is an element of

trespass to chattel. “[T]respass to chattel has evolved considerably from its

original common law application—concerning the asportation of another’s

tangible property—to include even the unauthorized use of personal property.”

(Thrifty-Tel, supra, 46 Cal.App.4th at p. 1566.)

As in those cases in which courts have granted injunctions to prevent the

delivery of unwanted mail, paper or electronic, Intel is not attempting to profit

from its trespass action by receiving nominal damages. Rather, it seeks an

injunction to prevent further trespass. Moreover, Intel suffered the requisite injury

by losing a great deal of work product, a harm properly related to the property

itself, as well as the money it spent in maintaining the system, which Hamidi

wrongfully expropriated.


Those who have contempt for grubby commerce and reverence for the

rarified heights of intellectual discourse may applaud today’s decision, but even

the flow of ideas will be curtailed if the right to exclude is denied. As the Napster

controversy revealed, creative individuals will be less inclined to develop

intellectual property if they cannot limit the terms of its transmission. Similarly, if

online newspapers cannot charge for access, they will be unable to pay the

journalists and editorialists who generate ideas for public consumption.

This connection between the property right to objects and the property right

to ideas and speech is not novel. James Madison observed, “a man’s land, or

merchandize, or money is called his property.” (Madison, Property, Nat. Gazette

(Mar. 27, 1792), reprinted in The Papers of James Madison (Robert A. Rutland et

al. edits. 1983) p. 266, quoted in McGinnis, The Once and Future Property-Based


Vision of the First Amendment (1996) 63 U.Chi. L.Rev. 49, 65.) Likewise, “a man

has a property in his opinions and the free communication of them.” (Ibid.)

Accordingly, “freedom of speech and property rights were seen simply as different

aspects of an indivisible concept of liberty.” (Id. at p. 63.)

The principles of both personal liberty and social utility should counsel us

to usher the common law of property into the digital age.




The majority hold that the California tort of trespass to chattels does not

encompass the use of expressly unwanted electronic mail that causes no physical

damage or impairment to the recipient’s computer system. They also conclude

that because a computer system is not like real property, the rules of trespass to

real property are also inapplicable to the circumstances in this case. Finally, they

suggest that an injunction to preclude mass, noncommercial, unwelcome e-mails

may offend the interests of free communication.

I respectfully disagree and would affirm the trial court’s decision. In my

view, the repeated transmission of bulk e-mails by appellant Kourosh Kenneth

Hamidi (Hamidi) to the employees of Intel Corporation (Intel) on its proprietary

confidential e-mail lists, despite Intel’s demand that he cease such activities,

constituted an actionable trespass to chattels. The majority fail to distinguish open

communication in the public “commons” of the Internet from unauthorized

intermeddling on a private, proprietary intranet. Hamidi is not communicating in

the equivalent of a town square or of an unsolicited “junk” mailing through the

United States Postal Service. His action, in crossing from the public Internet into

a private intranet, is more like intruding into a private office mailroom,

commandeering the mail cart, and dropping off unwanted broadsides on 30,000

desks. Because Intel’s security measures have been circumvented by Hamidi, the

majority leave Intel, which has exercised all reasonable self-help efforts, with no

recourse unless he causes a malfunction or systems “crash.” Hamidi’s repeated

intrusions did more than merely “prompt[] discussions between ‘[e]xcited and


nervous managers’ and the company’s human resource department” (maj. opn.,

ante, at p. 6); they also constituted a misappropriation of Intel’s private computer

system contrary to its intended use and against Intel’s wishes.

The law of trespass to chattels has not universally been limited to physical

damage. I believe it is entirely consistent to apply that legal theory to these

circumstances — that is, when a proprietary computer system is being used

contrary to its owner’s purposes and expressed desires, and self-help has been

ineffective. Intel correctly expects protection from an intruder who misuses its

proprietary system, its nonpublic directories, and its supposedly controlled

connection to the Internet to achieve his bulk mailing objectives — incidentally,

without even having to pay postage.


Intel maintains an intranet — a proprietary computer network — as a tool

for transacting and managing its business, both internally and for external business

communications.1 The network and its servers constitute a tangible entity that has

value in terms of the costs of its components and its function in enabling and

enhancing the productivity and efficiency of Intel’s business operations. Intel has


The Oxford English Dictionary defines an intranet as “A local or restricted

computer network; spec. a private or corporate network that uses Internet
protocols. An intranet may (but need not) be connected to the Internet and be
accessible externally to authorized users.” (OED Online, new ed., draft entry,
Mar. 2003, <> [as of June 30, 2003]; see also Kokka,
Property Rights on an Intranet, 3-Spring 1998 J. Tech.L. & Policy 3, WL 3
UFLJTLP 3 at *3, *6 [defining an intranet as “an internal network of computers,
servers, routers and browser software designed to organize, secure, distribute and
collect information within an organization” which in large organizations generally
includes a wide range of services, including e-mail].) Contrary to the majority’s
assertion, there is nothing incorrect about characterizing Hamidi’s unauthorized
bulk e-mails as intrusions onto Intel’s intranet.


established costly security measures to protect the integrity of its system, including

policies about use, proprietary internal e-mail addresses that it does not release to

the public for use outside of company business, and a gateway for blocking

unwanted electronic mail — a so-called firewall.

The Intel computer usage guidelines, which are promulgated for its

employees, state that the computer system is to be “used as a resource in

conducting business. Reasonable personal use is permitted, but employees are

reminded that these resources are the property of Intel and all information on these

resources is also the property of Intel.” Examples of personal use that would not

be considered reasonable expressly include “use that adversely affects

productivity.” Employee e-mail communications are neither private nor


Hamidi, a former Intel employee who had sued Intel and created an

organization to disseminate negative information about its employment practices,

sent bulk electronic mail on six occasions to as many as 35,000 Intel employees on

its proprietary computer system, using Intel’s confidential employee e-mail lists

and adopting a series of different origination addresses and encoding strategies to

elude Intel’s blocking efforts. He refused to stop when requested by Intel to do so,

asserting that he would ignore its demands: “I don’t care. I have grown deaf.”

Intel sought injunctive relief, alleging that the disruptive effect of the bulk

electronic mail, including expenses from administrative and management

personnel, damaged its interest in the proprietary nature of its network.

The trial court, in its order granting summary judgment and a permanent

injunction, made the following pertinent findings regarding Hamidi’s transmission

of bulk electronic mail: “Intel has requested that Hamidi stop sending the

messages, but Hamidi has refused, and has employed surreptitious means to

circumvent Intel’s efforts to block entry of his messages into Intel’s system. . . .


[¶] . . . The e-mail system is dedicated for use in conducting business, including

communications between Intel employees and its customers and vendors.

Employee e-mail addresses are not published for use outside company business.

. . . [¶] The intrusion by Hamidi into the Intel e-mail system has resulted in the

expenditure of company resources to seek to block his mailings and to address

employee concerns about the mailings. Given Hamidi’s evasive techniques to

avoid blocking, the self help remedy available to Intel is ineffective.” The trial

court concluded that “the evidence establishes (without dispute) that Intel has been

injured by diminished employee productivity and in devoting company resources

to blocking efforts and to addressing employees about Hamidi’s e-mails.” The

trial court further found that the “massive” intrusions “impaired the value to Intel

of its e-mail system.”

The majority agree that an impairment of Intel’s system would result in an

action for trespass to chattels, but find that Intel suffered no injury. As did the trial

court, I conclude that the undisputed evidence establishes that Intel was

substantially harmed by the costs of efforts to block the messages and diminished

employee productivity. Additionally, the injunction did not affect Hamidi’s ability

to communicate with Intel employees by other means; he apparently continues to

maintain a Web site to publicize his messages concerning the company.

Furthermore, I believe that the trial court and the Court of Appeal correctly

determined that the tort of trespass to chattels applies in these circumstances.

The Restatement Second of Torts explains that a trespass to a chattel occurs

if “the chattel is impaired as to its condition, quality, or value” or if “harm is

caused to some . . . thing in which the possessor has a legally protected interest.”

(Rest.2d Torts, § 218, subds. (b) & (d), p. 420, italics added.) As to this tort, a

current prominent treatise on the law of torts explains that “[t]he defendant may

interfere with the chattel by interfering with the plaintiff’s access or use” and


observes that the tort has been applied so as “to protect computer systems from

electronic invasions by way of unsolicited email or the like.” (1 Dobbs, The Law

of Torts (2001) § 60, pp. 122-123.) Moreover, “[t]he harm necessary to trigger

liability for trespass to chattels can be . . . harm to something other than the chattel

itself.” (Id. at pp. 124-125; see also 1 Harper et al., The Law of Torts (3d ed. 1996

& 2003 supp.) § 2.3, pp. 2:14-2:18.) The Restatement points out that, unlike a

possessor of land, a possessor of a chattel is not given legal protection from

harmless invasion, but “the actor” may be liable if the conduct affects “some other

and more important interest of the possessor.” (Rest.2d Torts, § 218, com. (e),

p. 421, italics added.)

The Restatement explains that the rationale for requiring harm for trespass

to a chattel but not for trespass to land is the availability and effectiveness of self-

help in the case of trespass to a chattel. “Sufficient legal protection of the

possessor’s interest in the mere inviolability of his chattel is afforded by his

privilege to use reasonable force to protect his possession against even harmless

interference.” (Rest.2d Torts, § 218, com. (e), p. 422.) Obviously, “force” is not

available to prevent electronic trespasses. As shown by Intel’s inability to prevent

Hamidi’s intrusions, self-help is not an adequate alternative to injunctive relief.

The common law tort of trespass to chattels does not require physical

disruption to the chattel. It also may apply when there is impairment to the

“quality” or “value” of the chattel. (Rest.2d Torts, § 218, subd. (b), p. 420; see

also id., com. (e), pp. 421-422 [liability if “intermeddling is harmful to the

possessor’s materially valuable interest in the physical condition, quality, or value

of the chattel”].) Moreover, as we held in Zaslow v. Kroenert (1946) 29 Cal.2d

541, 551, it also applies “[w]here the conduct complained of does not amount to a


substantial interference with possession or the right thereto, but consists of

intermeddling with or use of or damages to the personal property.”2

Here, Hamidi’s deliberate and continued intermeddling, and threatened

intermeddling, with Intel’s proprietary computer system for his own purposes that

were hostile to Intel, certainly impaired the quality and value of the system as an

internal business device for Intel and forced Intel to incur costs to try to maintain

the security and integrity of its server — efforts that proved ineffective. These

included costs incurred to mitigate injuries that had already occurred. It is not a

matter of “bootstrapp[ing]” (maj. opn., ante, at p. 20) to consider those costs a

damage to Intel. Indeed, part of the value of the proprietary computer system is

the ability to exclude intermeddlers from entering it for significant uses that are

disruptive to its owner’s business operations.

If Intel, a large business with thousands of former employees, is unable to

prevent Hamidi from continued intermeddling, it is not unlikely that other

outsiders who obtain access to its proprietary electronic mail addresses would

engage in similar conduct, further reducing the value of, and perhaps debilitating,

the computer system as a business productivity mechanism. Employees

understand that a firewall is in place and expect that the messages they receive are

from senders permitted by the corporation. Violation of this expectation increases

the internal disruption caused by messages that circumvent the company’s attempt

to exclude them. The time that each employee must spend to evaluate, delete or


In Zaslow, we observed that when the trespass involves “intermeddling

with or use of” another’s property, the owner “may recover only the actual
damages suffered by reason of the impairment of the property or the loss of its
use.” (Zaslow v. Kroenert, supra, 29 Cal.2d at p. 551.) We did not state that such
damages were a requirement for a cause of action; nor did we address the
availability of injunctive relief.


respond to the message, when added up, constitutes an amount of compensated

time that translates to quantifiable financial damage.3

All of these costs to protect the integrity of the computer system and to deal

with the disruptive effects of the transmissions and the expenditures attributable to

employee time, constitute damages sufficient to establish the existence of a

trespass to chattels, even if the computer system was not overburdened to the point

of a “crash” by the bulk electronic mail.

The several courts that have applied the tort of trespass to chattels to

deliberate intermeddling with proprietary computer systems have, for the most

part, used a similar analysis. Thus, the court in CompuServe Inc. v. Cyber

Promotions, Inc. (S.D. Ohio 1997) 962 F.Supp. 1015, 1022, applied the

Restatement to conclude that mass mailings and evasion of the server’s filters


As the recent spate of articles on “spam” — unsolicited bulk e-mail —

suggests, the effects on business of such unwanted intrusions are not trivial.
“Spam is not just a nuisance. It absorbs bandwidth and overwhelms Internet
service providers. Corporate tech staffs labor to deploy filtering technology to
protect their networks. The cost is now widely estimated (though all such
estimates are largely guesswork) at billions of dollars a year. The social costs are
immeasurable. . . . [¶] ‘Spam has become the organized crime of the Internet.’ . . .
‘[M]ore and more it’s becoming a systems and engineering and networking
problem.’ ” (Gleick, Tangled Up in Spam, N.Y. Times (Feb. 9, 2003) magazine
p. 1 <> [as of June 30, 2003]; see also
Cooper & Shogren, U.S., States Turn Focus to Curbing Spam, L.A. Times (May 1,
2003) p. A21, col. 2 [“Businesses are losing money with every moment that
employees spend deleting”]; Turley, Congress Must Send Spammers a Message,
L.A. Times (Apr. 21, 2003) p. B13, col. 5 [“Spam now costs American businesses
about $9 billion a year in lost productivity and screening”]; Taylor, Spam’s Big
(June 16, 2003) Time magazine, at p. 51 [“The time we spend deleting or
defeating spam costs an estimated $8.9 billion a year in lost productivity”].) But
the occasional spam addressed to particular employees does not pose nearly the
same threat of impaired value as the concerted bulk mailings into one e-mail
system at issue here, which mailings were sent to thousands of employees with the
express purpose of disrupting business as usual.


diminished the value of the mail processing computer equipment to CompuServe

“even though it is not physically damaged by defendant’s conduct.” The

inconvenience to users of the system as a result of the mass messages “decrease[d]

the utility of CompuServe’s e-mail service” and was actionable as a trespass to

chattels. (Id. at p. 1023.)

The court in America Online, Inc. v. IMS (E.D.Va. 1998) 24 F.Supp.2d 548,

on facts similar to those in the present case, also applied the Restatement in a

trespass to chattels claim. There, defendant sent unauthorized e-mails to America

Online’s computer system, persisting after receiving notice to desist and causing

the company “to spend technical resources and staff time to ‘defend’ its computer

system and its membership” against the unwanted messages. (Id. at p. 549.) The

company was not required to show that its computer system was overwhelmed or

suffered a diminution in performance; mere use of the system by the defendant

was sufficient to allow the plaintiff to prevail on the trespass to chattels claim.

Similarly, the court in eBay, Inc. v. Bidder’s Edge, Inc. (N.D.Cal. 2000)

100 F.Supp.2d 1058 determined that there was a trespass to chattels when the

quality or value of a computer system was diminished by unauthorized “web

crawlers,”4 despite the fact that eBay had not alleged any “particular service

disruption” (id. at p. 1065) or “specific incremental damages” (id. at p. 1063) to

the computer system. Intermeddling with eBay’s private property was sufficient

to establish a cause of action: “A trespasser is liable when the trespass diminishes

the condition, quality or value of personal property”; “[e]ven if [defendant’s

intrusions] use only a small amount of eBay’s computer . . . capacity, [defendant]


A “web crawler” is a computer program that operates across the Internet to

obtain information from the websites of others. (eBay, Inc. v. Bidder’s Edge,
100 F.Supp.2d at p. 1061, fn. 2.)


has nonetheless deprived eBay of the ability to use that portion of its personal

property for its own purposes. The law recognizes no such right to use another’s

personal property.” (Id. at p. 1071; see also, e.g., Oyster Software, Inc. v. Forms

Processing, Inc. (N.D.Cal. Dec. 6, 2001, No. C-00-0724 JCS) 2001 WL 1736382

at *12 -*13 [trespass to chattels claim did not require company to demonstrate

physical damage];, Inc. v. Verio, Inc. (S.D.N.Y. 2000) 126

F.Supp.2d 238, 250 [accord]; cf. Thrifty-Tel, Inc. v. Bezenek (1996) 46

Cal.App.4th 1559, 1566-1567 [unconsented electronic access to a computer

system constituted a trespass to chattels].)

These cases stand for the simple proposition that owners of computer

systems, like owners of other private property, have a right to prevent others from

using their property against their interests. That principle applies equally in this

case. By his repeated intermeddling, Hamidi converted Intel’s private employee

e-mail system into a tool for harming productivity and disrupting Intel’s

workplace. Intel attempted to put a stop to Hamidi’s intrusions by increasing its

electronic screening measures and by requesting that he desist. Only when self-

help proved futile, devolving into a potentially endless joust between attempted

prevention and circumvention, did Intel request and obtain equitable relief in the

form of an injunction to prevent further threatened injury.

The majority suggest that Intel is not entitled to injunctive relief because it

chose to allow its employees access to e-mail through the Internet and because

Hamidi has apparently told employees that he will remove them from his mailing

list if they so request. They overlook the proprietary nature of Intel’s intranet

system; Intel’s system is not merely a conduit for messages to its employees. As

the owner of the computer system, it is Intel’s request that Hamidi stop that must

be respected. The fact that, like most large businesses, Intel’s intranet includes

external e-mail access for essential business purposes does not logically mean, as


the majority suggest, that Intel has forfeited the right to determine who has access

to its system. Its intranet is not the equivalent of a common carrier or public

communications licensee that would be subject to requirements to provide service

and access. Just as Intel can, and does, regulate the use of its computer system by

its employees, it should be entitled to control its use by outsiders and to seek

injunctive relief when self-help fails.

The majority also propose that Intel has sufficient avenues for legal relief

outside of trespass to chattels, such as interference with prospective economic

relations, interference with contract, intentional infliction of emotional distress,

and defamation; Hamidi urges that an action for nuisance is more appropriate.

Although other causes of action may under certain circumstances also apply to

Hamidi’s conduct, the remedy based on trespass to chattels is the most efficient

and appropriate. It simply requires Hamidi to stop the unauthorized use of

property without regard to the content of the transmissions. Unlike trespass to

chattels, the other potential causes of action suggested by the majority and Hamidi

would require an evaluation of the transmissions’ content and, in the case of a

nuisance action, for example, would involve questions of degree and value

judgments based on competing interests. (See Hellman v. La Cumbre Golf &

Country Club (1992) 6 Cal.App.4th 1224, 1230-1231; 11 Witkin, Summary of

Cal. Law (9th ed. 1990) Equity, § 153, p. 833; Rest.2d Torts, § 840D).


As discussed above, I believe that existing legal principles are adequate to

support Intel’s request for injunctive relief. But even if the injunction in this case

amounts to an extension of the traditional tort of trespass to chattels, this is one of

those cases in which, as Justice Cardozo suggested, “[t]he creative element in the


judicial process finds its opportunity and power” in the development of the law.

(Cardozo, Nature of the Judicial Process (1921) p. 165.)5

The law has evolved to meet economic, social, and scientific changes in

society. The industrial revolution, mass production, and new transportation and

communication systems all required the adaptation and evolution of legal


The age of computer technology and cyberspace poses new challenges to

legal principles. As this court has said, “the so-called Internet revolution has

spawned a host of new legal issues as courts have struggled to apply traditional

legal frameworks to this new communication medium.” (Pavlovich v. Superior

Court (2002) 29 Cal.4th 262, 266.) The court must now grapple with proprietary

interests, privacy, and expression arising out of computer-related disputes. Thus,

in this case the court is faced with “that balancing of judgment, that testing and

sorting of considerations of analogy and logic and utility and fairness” that Justice

Cardozo said he had “been trying to describe.” (Cardozo, Nature of the Judicial

Process, supra, at pp. 165-166.) Additionally, this is a case in which equitable

relief is sought. As Bernard Witkin has written, “equitable relief is flexible and

expanding, and the theory that ‘for every wrong there is a remedy’ [Civ. Code,

§ 3523] may be invoked by equity courts to justify the invention of new methods

of relief for new types of wrongs.” (11 Witkin, Summary of Cal. Law, supra,

Equity, § 3, p. 681.) That the Legislature has dealt with some aspects of

commercial unsolicited bulk e-mail (Bus. & Prof. Code, §§ 17538.4, 17538.45;

see maj. opn., ante, at p. 25) should not inhibit the application of common law tort


“It is revolting to have no better reason for a rule of law than that so it was

laid down in the time of Henry IV.” (Holmes, The Path of the Law (1897) 10
Harv.L.Rev. 457, 469.)


principles to deal with e-mail transgressions not covered by the legislation. (Cf.

California Assn. of Health Facilities v. Department of Health Services (1997) 16

Cal.4th 284, 297; I.E. Associates v. Safeco Title Ins. Co. (1985) 39 Cal.3d 281,


Before the computer, a person could not easily cause significant disruption

to another’s business or personal affairs through methods of communication

without significant cost. With the computer, by a mass mailing, one person can at

no cost disrupt, damage, and interfere with another’s property, business, and

personal interests. Here, the law should allow Intel to protect its computer-related

property from the unauthorized, harmful, free use by intruders.


As the Court of Appeal observed, connecting one’s driveway to the general

system of roads does not invite demonstrators to use the property as a public

forum. Not mindful of this precept, the majority blur the distinction between

public and private computer networks in the interest of “ease and openness of

communication.” (Maj. opn., ante, at p. 26.) By upholding Intel’s right to

exercise self-help to restrict Hamidi’s bulk e-mails, they concede that he did not

have a right to send them through Intel’s proprietary system. Yet they conclude

that injunctive relief is unavailable to Intel because it connected its e-mail system

to the Internet and thus, “necessarily contemplated” unsolicited communications to

its employees. (Maj. opn., ante, at p. 20.) Their exposition promotes

unpredictability in a manner that could be as harmful to open communication as it

is to property rights. It permits Intel to block Hamidi’s e-mails entirely, but offers

no recourse if he succeeds in breaking through its security barriers, unless he

physically or functionally degrades the system.

By making more concrete damages a requirement for a remedy, the

majority has rendered speech interests dependent on the impact of the e-mails.


The sender will never know when or if the mass e-mails sent by him (and perhaps

others) will use up too much space or cause a crash in the recipient system, so as

to fulfill the majority’s requirement of damages. Thus, the sender is exposed to

the risk of liability because of the possibility of damages. If, as the majority

suggest, such a risk will deter “ease and openness of communication” (maj. opn.,

ante, at p. 26), the majority’s formulation does not eliminate such deterrence.

Under the majority’s position, the lost freedom of communication still exists. In

addition, a business could never reliably invest in a private network that can only

be kept private by constant vigilance and inventiveness, or by simply shutting off

the Internet, thus limiting rather than expanding the flow of information.6

Moreover, Intel would have less incentive to allow employees reasonable use of

its equipment to send and receive personal e-mails if such allowance is

justification for preventing restrictions on unwanted intrusions into its computer

system. I believe the best approach is to clearly delineate private from public

networks and identify as a trespass to chattels the kind of intermeddling involved


The views of the amici curiae group of intellectual property professors that

a ruling in favor of Intel will interfere with communication are similarly misplaced

because here, Intel, contrary to most users, expressly informed appellant that it did

not want him sending messages through its system. Moreover, as noted above, all

of the problems referred to will exist under the apparently accepted law that there

is a cause of action if there is some actionable damage.


Thus, the majority’s approach creates the perverse incentive for companies

to invest less in computer capacity in order to protect its property. In the view of
the majority, Hamidi’s massive e-mails would be actionable only if Intel had
insufficient server or storage capacity to manage them.


Hamidi and other amici curiae raise, for the first time on appeal, certain

labor law issues, including the matter of protected labor-related communications.

Even assuming that these issues are properly before this court (see Cal. Rules of

Court, rule 28(c)(1)), to the extent the laws allow what would otherwise be

trespasses for some labor-related communications, my position does not exclude

that here too. But there has been no showing that the communications are labor

law protected.7

Finally, with regard to alleged constitutional free speech concerns raised by

Hamidi and others, this case involves a private entity seeking to enforce private

rights against trespass. Unlike the majority, I have concluded that Hamidi did

invade Intel’s property. His actions constituted a trespass — in this case a trespass

to chattels. There is no federal or state constitutional right to trespass. (Adderley

v. Florida (1966) 385 U.S. 39, 47 [“Nothing in the Constitution of the United

States prevents Florida from even-handed enforcement of its general trespass

statute. . . .”]; Church of Christ in Hollywood v. Superior Court (2002) 99

Cal.App.4th 1244, 1253-1254 [affirming a restraining order preventing former

church member from entering church property: “[the United States Supreme

Court] has never held that a trespasser or an uninvited guest may exercise general

rights of free speech on property privately owned”]; see also CompuServe Inc. v.

Cyber Promotions, Inc., supra, 962 F.Supp. at p. 1026 [“the mere judicial

enforcement of neutral trespass laws by the private owner of property does not

alone render it a state actor”]; Cyber Promotions, Inc. v. America Online, Inc.


The bulk e-mail messages from Hamidi, a nonemployee, did not purport to

spur employees into any collective action; he has conceded that “[t]his is not a
drive to unionize.” Nor was his disruptive conduct part of any bona fide labor


(E.D.Pa. 1996) 948 F.Supp. 436, 456 [“a private company such as Cyber simply

does not have the unfettered right under the First Amendment to invade AOL’s

private property . . . .”].) Accordingly, the cases cited by the majority regarding

restrictions on speech, not trespass, are not applicable. Nor does the connection of

Intel’s e-mail system to the Internet transform it into a public forum any more than

any connection between private and public properties. Moreover, as noted above,

Hamidi had adequate alternative means for communicating with Intel employees

so that an injunction would not, under any theory, constitute a free speech

violation. (Lloyd Corp. v. Tanner (1972) 407 U.S. 551, 568-569.)


The trial court granted an injunction to prevent threatened injury to Intel.

That is the purpose of an injunction. (Ernst & Ernst v. Carlson (1966) 247

Cal.App.2d 125, 128.) Intel should not be helpless in the face of repeated and

threatened abuse and contamination of its private computer system. The

undisputed facts, in my view, rendered Hamidi’s conduct legally actionable.

Thus, the trial court’s decision to grant a permanent injunction was not “a clear

abuse of discretion” that may be “disturbed on appeal.” (Shapiro v. San Diego

City Council (2002) 96 Cal.App.4th 904, 912; see also City of Vernon v. Central

Basin Mun. Water Dist. (1999) 69 Cal.App.4th 508, 516 [in an appeal of summary

judgment, the trial court’s decision to deny a permanent injunction was “governed

by the abuse of discretion standard of review”].)

The injunction issued by the trial court simply required Hamidi to refrain

from further trespassory conduct, drawing no distinction based on the content of

his e-mails. Hamidi remains free to communicate with Intel employees and others

outside the walls — both physical and electronic — of the company.


For these reasons, I respectfully dissent.




Associate Justice, Court of Appeal, Second Appellate District, Division

Five, assigned by the Chief Justice pursuant to article VI, section 6 of the
California Constitution.


See last page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion Intel Corporation v. Hamidi

Unpublished Opinion
Original Appeal
Original Proceeding
Review Granted
XXX 94 Cal.App.4th 325
Rehearing Granted

Opinion No.
Date Filed: June 30, 2003

County: Sacramento
Judge: John R. Lewis

Attorneys for Appellant:

Philip H. Weber; Dechert, William M. McSwain, Richard L. Berkman, F. Gregory Lastowka; Levy, Ram &
Olson, Karl Olson and Erica L. Craven for Defendant and Appellant.

Mark A. Lemley and Deirdre K. Mulligan for Professors of Intellectual Property and Computer Law as
Amicus Curiae on behalf of Defendant and Appellant.

Lee Tien and Deborah Pierce for Electronic Frontier Foundation as Amicus Curiae on behalf of Defendant
and Appellant.

Jennifer Stisa Granick for the Stanford Law School Center for Internet and Society as Amicus Curiae on
behalf of Defendant and Appellant.

Ann Brick and Christopher A. Hansen for American Civil Liberties Union Foundation of Northern
California, Inc., and American Civil Liberties Union Foundation as Amici Curiae on behalf of Defendant
and Appellant.

Robert M. O’Neil and J. Joshua Wheeler for The Thomas Jefferson Center for the Protection of Free
Expression as Amicus Curiae on behalf of Defendant and Appellant.

Atshuler, Berzon, Nussbaum, Rubin & Demain, Stephen P. Berzon, Scott A. Kronland and Stacey M.
Leyton for the Service Employees International Union, AFL-CIO as Amicus Curiae on behalf of Defendant
and Appellant.

Attorneys for Respondent:

Morrison & Foerster, Linda E. Shostak, Michael A. Jacobs, Kurt E. Springmann and Paul A. Friedman for
Plaintiff and Respondent.


Page 2 - counsel continued - S103781

Attorneys for Respondent:

Steptoe & Johnson, Stewart A. Baker and W. Chelsea Chen for the US Internet Service Provider
Association as Amicus Curiae on behalf of Plaintiff and Respondent.

Richard A. Epstein for California Employment Law Council, California Manufacturers & Technology
Association, eBay, Inc., Information Technology Industry Council, National Association of Manufacturers,
Semiconductor Industry Association and Silicon Valley Manufacturing Group as Amici Curiae on behalf of
Plaintiff and Respondent.

Fred J. Hiestand for the Civil Justice Association of California as Amicus Curiae on behalf of Plaintiff and

Proskauer Rose, Mark Theodore, Arthur F. Silbergeld, Niloofar Nejat-Bina and Adam C. Abrahms for
Labor Policy Association, Inc., United States Chamber of Commerce and California Chamber of
Commerce as Amici Curiae on behalf of Plaintiff and Respondent.


Counsel who argued in Supreme Court (not intended for publication with opinion):

William M. McSwain
4000 Bell Atlantic Tower
1717 Arch Street
Philadelphia, PA 19103-2793
(215) 994-4000

Michael A. Jacobs
Morrison & Foerster
425 Market Street
San Francisco, CA 94105-2482
(415) 268-7000



Opinion Information
Date:Docket Number:
Mon, 06/30/2003S103781A

1Hamidi, Kourosh Kenneth (Defendant and Appellant)
Represented by Karl Olson
Levy Ram, Olson & Rossi LLP
639 Front Street, 4th Floor
San Francisco, CA

2Hamidi, Kourosh Kenneth (Defendant and Appellant)
Represented by Richard Berkman
4000 Bell Atlantic Tower, 1717 Arch St.
Philadelphia, PA

3Hamidi, Kourosh Kenneth (Defendant and Appellant)
Represented by Erica Lee Craven-Green
Levy Ram, Olson & Rossi LLP
639 Front Street, 4th Floor
San Francisco, DC

4Hamidi, Kourosh Kenneth (Defendant and Appellant)
Represented by F. Gregory Lastowka
4000 Bell Atlantic Tower, 1717 Arch St.
Philadelphia, PA

5Intel Corporation (Plaintiff and Respondent)
Represented by Michael Allen Jacobs
Morrison & Foerster
425 Market Street
San Francisco, CA

6Afl-Cio (Pub/Depublication Requestor)
Represented by Stacey Monica Leyton
Attorney at Law
177 Post Street, Ste. 300
San Francisco, CA

7Professors Of Intellectual Property And Computer Law (Amicus curiae)
Represented by Mark Alan Lemley
Univ. of Calif., Boalt Hall
396 Simon Hall
Berkeley, CA

8California Employment Law Council, Et Al. (Amicus curiae)
Represented by Richard Allen Epstein
Univ. Of Chicago Law School
1111 East 60th St.
Chicago, IL

9U.S. Internet Service Provider Association (Amicus curiae)
10Aclu Foundation Of Northern California, Inc. (Amicus curiae)
Represented by Ann Brick
American Civil Liberties Union Foundation Of No Ca
1663 Mission Street, Suite 460
San Francisco, CA

11Center For Internet & Society (Amicus curiae)
Represented by Jennifer S. Granick
Attorney at Law
559 Nathan Abbott Way
Stanford, CA

12Labor Policy Association, Inc. (Amicus curiae)
Represented by Mark Theodore
Proskauer Rose, LLP
2049 Century Park East, Ste. 3200
Los Angeles, CA

13Thomas Jefferson Center For Protection Of Free Expression (Amicus curiae)
Represented by J. Joshua Wheeler
Attorney at Law
400 Peter Jefferson Place
Charlottesville, VA

Jun 30 2003Opinion: Reversed

Jan 22 2002Petition for review filed
  by counsel for appellant Kourosh Kenneth Hamidi. *Message left with secretary for atty Karl Olson to provide supplemental POS on Superior Court.*
Jan 22 2002Record requested
Jan 23 2002Received:
  amended proof of service from appellant for ptn for review.
Jan 23 2002Application filed to:
  be admitted as counsel pro hac vice Richard L. Berkman, William M. McSwain & F. Gregory Lastowka for appellant Kourosh Kenneth Hamidi.
Jan 24 2002Received Court of Appeal record
  one doghouse
Feb 11 2002Request for depublication (petition for review pending)
  American Federation of Labor and Congress of Organization Industrial Organizations, et al., (non-party)
Feb 11 2002Answer to petition for review filed
  by counsel for respondent (Intel Corporation)
Feb 21 2002Reply to answer to petition filed
  counsel for appellant ( K. Hamidi)
Mar 21 2002Time extended to grant or deny review
  to and including April 22, 2002
Mar 27 2002Petition for Review Granted (civil case)
  Baxter, J., and Chin, J., were recused and did not participate.
Apr 3 2002Certification of interested entities or persons filed
  by counsel for appellant (K. Hamidi)
Apr 10 2002Request for extension of time filed
  by counsel for appellant (K. Hamidi) requesting 90-day extension of time to file opening brief on the merits.
Apr 11 2002Certification of interested entities or persons filed
  by counsel for respondent (Intel Corporation)
Apr 16 2002Extension of time granted
  Appellant's time to serve and file the opening brief on the merits will be (30) days from the date of filing of this order. No further extensions are contemplated or will be granted without a substantial showing of good cause.
Apr 16 2002Order filed
  The application of William M. McSwain, Richard L. Berkman, and F. Gregory Lastowka of the State of Pennsylvania for admission Pro Hac Vice to appear on behalf of Kourosh Kenneth Hamid is hereby granted.
Apr 18 2002Note: Mail returned (unable to forward)
  (Certification of Interested Entities or Persons to Atty Abner Reed Neff)
May 16 2002Opening brief on the merits filed
  by counsel for appellant (K. Hamidi)
Jun 17 2002Answer brief on the merits filed
  by counsel for respondent (Intel Corp.)
Jun 17 2002Request for judicial notice filed (in non-AA proceeding)
  by counsel for respondent (Intel Corp.)
Jul 8 2002Reply brief filed (case fully briefed)
  by counsel for appellant (K. Hamidi)
Jul 8 2002Request for judicial notice filed (in non-AA proceeding)
  by counsel for appellant (K. Hamidi)
Jul 18 2002Filed:
  by counsel for respondent (Intel Corp.) Opposition to appellant's Request for Judicial Notice.
Jul 26 2002Received application to file amicus curiae brief; with brief
  by Professors of Intellectual Property & Computer Law in support of aplt.
Jul 29 2002Filed:
  aplt Hamidi's reply to resp Intel's oppos. to motion for judicial notice.
Aug 2 2002Permission to file amicus curiae brief granted
  by Professors of Intellectual Property and Computer Law . any answers due w/in 20 days.
Aug 2 2002Amicus Curiae Brief filed by:
  Prof. of Intellectual Prop. & Computer Law.
Aug 5 2002Request for extension of time filed
  by counsel for respondent (Intel Corp.) to August 27, 2002 to file single omnibus answer to amicus briefs.
Aug 5 2002Received application to file amicus curiae brief; with brief
  Labor Policy Assoc., Inc., United States Chamber of Commerce, and California Chamber of Commerce supports resp Intel Corp., [application ad brief separate]
Aug 5 2002Received application to file Amicus Curiae Brief
  by Electronic Frontier Foundation (non-party) supporting reversal. (brief under same cover)
Aug 6 2002Permission to file amicus curiae brief granted
  Electronic Frontier Foundation supporting reversal.
Aug 6 2002Amicus Curiae Brief filed by:
  Electronic Frontier Foundation
Aug 7 2002Received application to file Amicus Curiae Brief
  Service Employees International Union, AFL-CIO (non-party) in support of appellant. (brief under same cover)
Aug 7 2002Received application to file Amicus Curiae Brief
  Center for Internet & Society in support of the appellate court's reversal. (brief under same cover)
Aug 7 2002Received application to file amicus curiae brief; with brief
  American Civil Liberties Union and American Civil Liberties Union of Southern California in support of appellant.
Aug 7 2002Received application to file Amicus Curiae Brief
  U S Internet Service Provider Assoc. in support of respondent. (brief under same cover)
Aug 7 2002Received application to file amicus curiae brief; with brief
  California Employment Law Council, et al., in supoprt of respondent.
Aug 8 2002Permission to file amicus curiae brief granted
  U S Internet Service Provider Assoc.
Aug 8 2002Amicus Curiae Brief filed by:
  U S Internet Service Provider Assoc. in support of respondent.
Aug 8 2002Permission to file amicus curiae brief granted
  Center for Internet & Society
Aug 8 2002Amicus Curiae Brief filed by:
  Center for Internet & Society in support of the appellate court's reversal.
Aug 8 2002Permission to file amicus curiae brief granted
  American Civil Liberties Union and American Civil Liberties Union of Northern Califo.
Aug 8 2002Amicus Curiae Brief filed by:
  American Civil Liberties Union and American Civil Liberties Union of Northern Calif. in support of appellant.
Aug 8 2002Permission to file amicus curiae brief granted
  California Employment Law Council, et al.,
Aug 8 2002Amicus Curiae Brief filed by:
  Calif. Employment Law Council, et al., in support of respondent.
Aug 8 2002Extension of time granted
  Counsel for respondent's time to serve and file the consolidated answer to amicus briefs is extended to and including August 27, 2002.
Aug 8 2002Received application to file Amicus Curiae Brief
  Civil Justice Assoc. of California (non-party) in support of respondent. (40k)
Aug 9 2002Received application to file Amicus Curiae Brief
  The Thomas Jefferson Center (non-party) in support of appellant and reversal. (brief under same cover) (40k)
Aug 12 2002Permission to file amicus curiae brief granted
  Civil Justice Assoc. of California in support of respondent.
Aug 12 2002Amicus Curiae Brief filed by:
  Civil Justice Association of California in support of respondent. An answer thereto may be served and filed by any party within twenty days of the filing of the brief.
Aug 13 2002Permission to file amicus curiae brief granted
  The Thomas Jefferson Center for the Protection of Free Expression.
Aug 13 2002Amicus Curiae Brief filed by:
  The Thomas Jefferson Center for the Protection of Free Expression in support of appellant and reversal.
Aug 13 2002Permission to file amicus curiae brief granted
  Service Employees International Union, AFL-CIO .
Aug 13 2002Amicus Curiae Brief filed by:
  Service Employees International Union, AFL-CIO in support of appellant. An answer thereto may be served and filed by any party within twenty days of the filing of the brief.
Aug 13 2002Permission to file amicus curiae brief granted
  Labor Policy Association Inc, et al.,
Aug 13 2002Amicus Curiae Brief filed by:
  Labor Policy Association Inc., et al., in support of respondent. An answer thereto may be served and filed by any party within twenty days of the filing of the brief.
Aug 16 2002Request for extension of time filed
  by counsel for appellant (Hamidi) to August 27, 2002 to file a consolidated answer to amicus briefs.
Aug 21 2002Extension of time granted
  Appellant's time to serve and file the consolidated answer to amicus briefs is extended to and including August 27, 2002.
Aug 27 2002Response to amicus curiae brief filed
  by counsel for appellant (Hamidi) (consolidated answer)
Aug 27 2002Response to amicus curiae brief filed
  by council for respondent (Intel Corp.) (consolidated answer)
Oct 29 20022nd record request
Oct 30 2002Received Court of Appeal record
Mar 6 2003Case ordered on calendar
  4-2-03, 9am, L.A.
Mar 17 2003Filed letter from:
  counsel for aplt.
Apr 2 2003Cause argued and submitted
  (Baxter and Chin, JJs, not participating; Perren and Mosk, JJs assigned Justices Pro Tempore)
Jun 30 2003Opinion filed: Judgment reversed
  OPINION BY: Werdegar, J. ---joined by Kennard, Moreno, (assigned) Perren, JJ. CONCURRING OPINION BY: Kennard, J. DISSENTING OPINION BY: BROWN, J. DISSENTING OPINION BY: (assigned) R. MOSK, J. --- joined by George, C.J.
Jul 30 2003Motion filed (in non-AA proceeding)
  Motion for award of entitlement to attorney's fees from counsel for appellant K. Hamidi
Aug 11 2003Opposition filed
  by counsel for respondent (Intel Corp.) to Motion for Award of Entitlement to Attorney's fees.
Aug 20 2003Remittitur issued (civil case)
Aug 20 2003Filed:
  appellant's reply to resp's motion re attorney's fees. (by fax)
Aug 20 2003Motion denied
Aug 28 2003Received:
  receipt for remittitur from CA 3

May 16 2002Opening brief on the merits filed
Jun 17 2002Answer brief on the merits filed
Jul 8 2002Reply brief filed (case fully briefed)
Aug 2 2002Amicus Curiae Brief filed by:
Aug 6 2002Amicus Curiae Brief filed by:
Aug 8 2002Amicus Curiae Brief filed by:
Aug 8 2002Amicus Curiae Brief filed by:
Aug 8 2002Amicus Curiae Brief filed by:
Aug 8 2002Amicus Curiae Brief filed by:
Aug 12 2002Amicus Curiae Brief filed by:
Aug 13 2002Amicus Curiae Brief filed by:
Aug 13 2002Amicus Curiae Brief filed by:
Aug 13 2002Amicus Curiae Brief filed by:
Aug 27 2002Response to amicus curiae brief filed
Aug 27 2002Response to amicus curiae brief filed
If you'd like to submit a brief document to be included for this opinion, please submit an e-mail to the SCOCAL website