Delfino v. Agilent Technologies, Inc.

• Decision Date: 14 December 2006
• Docket Number: No. H028993.,H028993.
• Citation: 145 Cal.App.4th 790,52 Cal.Rptr.3d 376
• Court: California Court of Appeals Court of Appeals
• Parties: Michelangelo DELFINO, et al., Plaintiffs and Appellants, v. AGILENT TECHNOLOGIES, INC., Defendant and Respondent.

52 Cal.Rptr.3d 376

145 Cal.App.4th 790

Michelangelo DELFINO, et al., Plaintiffs and Appellants, v. AGILENT TECHNOLOGIES, INC., Defendant and Respondent.

No. H028993.

Court of Appeal, Sixth District.

December 14, 2006.

Michelangelo Delfino, in pro. per.

Mary E. Day, in pro. per.

Bradford K. Newman, Katherine C. Huibonhoa, Shannon S. Sevey, Paul, Hastings, Janofsky & Walker, Palo Alto, for Defendant and Respondent.

DUFFY, J.

A series of anonymous messages were sent over the Internet that constituted threats to Michelangelo Delfino and Mary E. Day (collectively, plaintiffs). The messages consisted of electronic mail messages (e-mails) sent to Delfino and messages that were posted on Internet bulletin boards. These e-mails and postings were ultimately traced to Cameron Moore. Plaintiffs brought suit against Moore and his former employer, Agilent Technologies, Inc. (Agilent). Agilent moved for summary judgment on various grounds, and the trial court granted the motion on the basis that Agilent was immune from suit under the Communications Decency Act of 1996(CDA). Specifically, the court held that under title 47 of the United States Code section 230(c)(1),¹ Agilent was a "provider ... of an interactive computer service" entitled to immunity under the CDA.

Plaintiffs contend on appeal that summary judgment should not have been granted because Agilent was not immune from suit under the CDA. They argue that they made a prima facie showing of negligence. We conclude after a de novo review that Agilent was an interactive computer service provider; as such, it was immune from liability for alleged damages arising out of the cyberthreats transmitted by its employee, Moore. We hold further that plaintiffs did not make a prima facie showing to support a claim against Agilent under theories of ratification, respondeat superior, or negligent supervision/retention. We therefore find that summary judgment in favor of Agilent was proper and will affirm.

PROCEDURAL HISTORY²

The complaint was filed on July 22, 2003.³ It included a claim for intentional infliction of emotional distress and a purported claim for negligent infliction of emotional distress against Moore and Agilent.⁴ Plaintiffs claimed that Moore sent a number of anonymous threats over the Internet and that he used Agilent's computer system to send these threats. Plaintiffs alleged further that Agilent was aware that Moore was using its computer system to threaten plaintiffs and that it took no action to prevent its employee from continuing to make his threats over the Internet.

Plaintiffs alleged that the anonymous threats against them occurred between April and July 2002, while an appeal was pending in unrelated litigation brought by plaintiffs' former employer, Varian Medical Systems (and others), against plaintiffs.⁵ The threats alleged in the complaint— most of which were directed solely at Delfino—were either e-mail messages sent to Delfino or were messages posted on the Yahoo! Message Board VAR.⁶ Most of the threatening e-mails and postings were sent by an individual using the Yahoo screen name "crack____smoking____jesus"; Moore later admitted to the Federal Bureau of Investigation (FBI) that he had used this pseudonym.⁷

The first cause of action of the complaint, captioned "Intentional Infliction of Emotional Distress," alleged that Moore's conduct in sending the anonymous e-mails and postings was intentional and malicious, causing plaintiffs to "suffer humiliation, mental anguish, and emotional and physical distress." Plaintiffs alleged on information and belief that Agilent "was informed and knew that Moore was using its computer system to" send the threatening messages. The second cause of action, captioned, "Negligent Infliction of Emotional Distress," contained (and incorporated by reference) the allegations of the first cause of action.

Agilent filed a motion for summary judgment, or, in the alternative, for summary adjudication. Plaintiffs opposed the motion. On March 18, 2005, the court entered an order granting Agilent's motion for summary judgment, concluding that "Agilent established that it is immune from liability under [title] 47 [of the United States Code section] 230(c)(1) ..., and plaintiffs failed to raise a triable issue of material fact in regard thereto." Judgment was entered on the summary judgment order on May 13, 2005.⁸ Plaintiffs filed a timely notice of appeal from the judgment. The appeal is one that properly lies from a judgment entered upon an order granting summary judgment. (Code Civ. Proc, § 437c, subd. (m); Oakland Raiders v. National Football League (2005) 131 Cal.App.4th 621, 628-629, 32 Cal.Rptr.3d 266.)

DISCUSSION

I. Issues On Appeal

Plaintiffs contend that the court erred in granting the summary judgment motion. They assert that Agilent is not immune from suit under section 230 of the CDA. They argue that because Agilent had no CDA immunity and it failed to take measures to protect plaintiffs from Moore's threatening communications, it is subject to negligence liability.

II. Standard of Review

As we have acknowledged, "[construction and application of a statute involve questions of law, which require independent review." (Murphy v. Padilla (1996) 42 Cal.App.4th 707, 711, 49 Cal.Rptr.2d 722; see also Elene H. v. County of Los Angeles (1990) 220 Cal.App.3d 1445, 1451, 269 Cal.Rptr. 783 [de novo review of summary judgment motion founded on defense of immunity].) Likewise, since summary judgment motions involve purely questions of law, we review the granting of summary judgment de novo. (Alexander v. Codemasters Group Limited (2002) 104 Cal. App.4th 129, 139, 127 Cal.Rptr.2d 145 [de novo review of "whether a triable issue of material fact exists and whether the moving party was entitled to summary judgment as a matter of law"]; Chavez v. Carpenter (2001) 91 Cal.App.4th 1433, 1438, 111 Cal.Rptr.2d 534.)

III. The Order Granting Summary Judgment

A. Agilent's Motion

On July 26, 2002,⁹ Agilent was contacted by Special Agent Sean Wells from the FBI, who "was requesting information on the user whose originating IP address came back to Agilent for `dreamcaster.txt.'" Special Agent Wells gave no other information concerning the inquiry during the initial contact. But he followed up with an e-mail to Agilent on July 26, in which he provided a listing of log-in entries for "dreamcaster.txt" where Agilent was the originating IP address; the listing included 25 log-in entries dated between July 12 and July 15. The internal investigation was handled primarily by Agilent's IT Security Consultant and Program Manager for CITSIRT (Corporate Information Technology Security Incident Response Team), Bill Rolfe, and its EHS & Security Manager, Douglas Buffington.

On July 29, Buffington telephoned Special Agent Wells to introduce himself and to indicate that Agilent would cooperate fully with the FBI. Special Agent Wells stated that he "was investigating some e[-]mail traffic, some of which the FBI suspected might [have been] sent by an Agilent employee." Buffington asked for details but was told that Special Agent Wells had obtained information through a grand jury proceeding and could not discuss any specifics.

On July 30, Rolfe traced "dreamcaster.txt" to the Agilent computer assigned to Moore. Rolfe performed further tests which confirmed that Moore was the current user of the machine. After completing this work, Rolfe e-mailed Buffington on July 30 with the results.

Buffington telephoned Special Agent Wells on July 30 and advised that Agilent had identified the user of the IP address. Before Buffington could identify the person, Special Agent Wells asked, "`Is the name that you have Cameron Moore?'" Buffington confirmed that this was the case. Special Agent Wells advised Buffington further that (1) "he was investigating complaints by Michelangelo Delfino and Mary Day, who were involved in a lawsuit with their former employer, Varian"; (2) plaintiffs had posted and were continuing "to post tens of thousands of inflammatory messages about Varian executives";<sup>10</sup> (3) after plaintiffs had lost in a jury trial involving Varian, some supporters of Varian began responding negatively to plaintiffs; (4) plaintiffs had learned that Moore had made Internet postings siding with Varian; (5) plaintiffs had made a series of Internet postings about Moore; (6) plaintiffs "had received some potentially threatening e[-]mails that appeared to come from Moore"; (7) "the situation had `gotten out of hand' and the FBI wanted `to put an end to it'"; (8) "the FBI wasn't planning to arrest Moore, didn't consider him to be dangerous, and wasn't after Moore's job"; and (9) the FBI simply wanted to speak to him to "get the situation stopped." Special Agent Wells neither informed Buffington of the substance of any of the e-mails the FBI was investigating, nor advised him that Moore made any threatening postings on Internet bulletin boards. Buffington did not understand from his communications with Special Agent Wells that the e-mails being investigated had been sent by Moore by using Agilent systems to log on to the Internet from work.

On August 1, Special Agent Wells made a follow-up request to Buffington for Agilent to investigate the log-in history (between June 27 and July 10) to determine whether the alias "dr_dweezil2000.txt" also belonged to Moore. Agilent thereafter determined that this alias was also traceable to the Agilent computer assigned to Moore. Buffington informed Special Agent Wells of Agilent's findings.

On August 12, Buffington and Agilent's Management Support Consultant, Stephanie Pierce,¹¹ met with Moore "to obtain Moore's side of the story and to administer a stern warning." Buffington declared that after Pierce explained what Agilent knew, Moore apologized for involving Agilent "but denied sending any threats through the use of Agilent systems." (Original underscore.) He stated that he had promised in writing that he...