Opinion
A sеries of anonymous messages was sent over the Internet that constituted threats to
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 Agilеnt under theories of ratification, respondeat superior, or negligent supervision and/or retention. We therefore find that summary judgment in favor of Agilent was proper and will affirm.
PROCEDURAL HISTORY 2
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
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 [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)
DISCUSSION
I. Issues on Appeal
Plaintiffs contend that the court erred in granting the summary judgment motion. They assert that Agilent is not immune
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)
HI. 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 [(Internet protocol)] 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 (environmental health and safety) & 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, Varían”; (2) plaintiffs had posted and
were continuing “to post tens of thousands of inflammatory messages about Varían executives”;
10
On August 1, Special Agent Wells made a followup 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 stem 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 underscoring.) He stated that he had promised in writing that he would not engage in any further similar conduct and thereafter provided Agilent with a copy of his letter to the United States Attorney.
12
Pierce gave Moore a stem warning; although she indicated that “there was no proof that he had sent threatening e[-]mails over the Internet through the use of Agilent systems, she reminded
Moore of Agilent’s Standards of Business Conduct[
13
]
In February 2003, Special Agent Wells contacted Buffington to advise him that the FBI planned to arrest Moore for conduct relating to Delfino. Buffington specifically asked if the planned arrest involved conduct by Moore in using Agilent computers, and Special Agent Wells said that it did not involve such conduct. In or about mid-February 2003, the FBI arrested Moore. In late February 2003, Buffington contacted the FBI to request a copy of the affidavit signed by Special Agent Wells pertaining to Moore’s arrest (arrest affidavit). Although Buffington was told at the time that the FBI “would be faxing it,” he did not receive the faxed copy of the arrest affidavit until April 7, 2003. That arrest affidavit contained a number of details about the substance of Moore’s threatening e-mails and postings, none of which had been provided previously by the FBI to Agilent.
On April 22, 2003, Buffington and two other Agilent representatives met with Moore. Moore admitted to Agilent for the first time that “prior to August 2002, he had sent some things that ‘weren’t nice and could be interpreted as threats’ by logging onto the Internet while at work.” (Original underscoring.) This statement directly contradicted what Moore had told Buffington and Pierce on August 12. Moore denied that he had used Agilent’s systems to send any threats after August. He also admitted that he had “sent sexually explicit or offensive e[-]mails over the Agilent e[-]mail system.” Moore was informed at the conclusion of the meeting that he “was being placed on immediate administrative leave while Agilent determined what discipline was appropriate.”
On April 30, 2003, Agilent terminated Moore’s employment. The termination notice advised Moore that he was being involuntarily terminated because he had violated Agilent’s Standards of Business Conduct, “specifically misusе of Agilent’s assets.” 14
B. Opposition to Summary Judgment Motion
The evidence presented in opposition to the summary judgment motion primarily consisted of excerpts from transcripts of the depositions of plaintiffs and several Agilent employees, the arrest affidavit, and documents concerning Moore’s sentencing. While that evidence was voluminous, most of it was not germane to the issues of CDA immunity and negligence liability.
Further, while plaintiffs indicated that there was a genuine dispute concerning a number of issues of material fact that Agilent claimed to have been undisputed (UMF), the evidence plaintiffs cited, upon examination, did not support their assertions. For instance, plaintiffs claimed a dispute existed regarding UMF No. 7—i.e., that on July 30, the FBI neither told Agilent that threats had been sent through Agilent’s computer system nor provided it with the contents of any e-mail the FBI was investigating. But plaintiffs’ cited evidence consisted of improperly spliced, separate excerpts of Buffington’s declaration and the arrest affidavit. As a result of the improper splicing, plaintiffs created purported content that did not exist
Other matters raised in plaintiffs’ opposition to the summary judgment motion relevant to this appeal are discussed, post.
C. Immunity Under the CDA
1. Applicable law
Section 230(c)(1) states that “[n]o provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.” The statute goes on to provide that causes of action inconsistent with it under state law are precluded: “Nothing in this section shall be construed to prevent any State from enforcing any State law that is consistent with this section. No cause of action may be brought and no liability may be imposed under any State or local law that is inconsistent with this section.” (§ 230(e)(3), italics added.)
Agilent contends that CDA immunity applied to plaintiffs’ claims here. It argues that plaintiffs sought to impose derivative liability upon Agilent for Moore’s Internet communications, where Agilent was simply a provider of an interactive computer service. Plaintiffs naturally dispute this contention.
The CDA—of which section 230 is a part—was enacted in 1996.
16
Its “primary goal . . . was to control the exposure of minors to indecent material” over the Internet.
(Batzel v. Smith, supra,
Zeran, supra,
The Fourth Circuit concluded that the CDA provided AOL (as an interactive computer service provider) with immunity from the plaintiff’s claims. It reasoned that the CDA’s immunity provisions were the result of congressional recognition of “the threat that tort-based lawsuits pose to freedom of speech in the new and burgeoning Internet medium”
(Zeran, supra,
At least three other federal circuit courts have followed the Fourth Circuit’s decision in
Zeran, supra,
2. Whether Agilent is immune from suit under the CDA
There are three essential elements that a defendant must establish in order to claim section 230 immunity. They are “(1) the defendant [is] a provider or
user of an interactive computer service; (2) the cause of action treat[s] the defendant as a publisher or speaker of information; and (3) the information at issue [is] provided by another information content provider.”
(Gentry
v.
eBay, Inc., supra,
First: Was Agilent “a provider or user of an interactive computer service?”
(Gentry v. eBay, Inc., supra,
We are aware of no case that has held that a corporate employer is a provider of interactive computer services under circumstances such as those presented here. But several commentators have opined that an employer that provides its employees with Internet access through the company’s internal computer system is among the class of parties potentially immune under the CDA. (See, e.g., Zion,
Protecting the E-Marketplace of Ideas by Protecting Employers: Immunity for Employers Under Section 230 of the Communications Decency Act
(2002) 54 Fed. Comm. L.J. 493, 496 [“it is evident from the language and legislative history of the [CDA] that Congress intended employers to be covered under § 230” (fn. omitted)]; Garvey,
The New Corporate Dilemma: Avoiding Liability in the Age of Internet Technology
(1999) 25 U. Dayton L.Rev. 133, 139 [“corporations with direct Internet connections are indeed [Internet service providers] and, therefore, should receive [CDA] immunity from employee computer abuse” (fn. omitted)].) Certainly, it is beyond question today—certainly more so than 10 years ago—that “Internet resources and access are sufficiently important to many
corporations and other employers that those employers link their office computer networks to the Internet and provide employees with direct or modem access to the office network (and thus to the Internet).”
(American Civil Liberties Union v. Reno
(E.D.Pa. 1996)
Second:
Does “the cause of action treat the defendant [(Agilent)] as a publisher or speaker of information?”
(Gentry v. eBay, Inc., supra,
We address whether section 230 immunity may apply to the specific tort claims alleged here. While many of the cases addressing CDA immunity have involved claims for defamation (see, e.g.,
Batzel v. Smith, supra,
In
Kathleen R.
v.
City of Livermore, supra,
Third: Was “the information at issue . . . provided by another information content provider?” (Gentry v. eBay, Inc., supra, 99 Cal.App.4th at p. 830.) 23 Clearly, Moore was the party who authored the offensive e-máils and postings. The allegations of the complaint do not suggest otherwise; to the contrary, the complaint consistently and repeatedly attributes authorship of the offensive messages to Moore alone. (See, e.g., pars. 1, 5, 6, 22, 23, 25-28, 30-32, 39, 40, 47, 48 of the complaint.) And there was no evidence that Agilent played any role whatsoever in “the creation or development” of the messages. (§ 230(f)(3); see fn. 21, ante.) 24 Clearly, Agilent satisfied the third standard enunciated in Gentry v. eBay, Inc., supra, 99 Cal.App.4th at page 830, required for a finding of CDA immunity.
Therefore, the trial court correctly held that Agilent was entitled to CDA immunity, because “(1) [Agilent was] ... a provider or user of an interactive computer service; (2) the cause of action treatfed Agilent] as a publisher or speaker of information; and (3) the information at issue [was] provided by another information content provider [(Moore)].”
(Gentry v. eBay, Inc., supra,
We have concluded, ante, that summary judgment was properly granted because Agilent was entitled to CDA immunity. But even if plaintiffs’ claims were not barred under section 230(c)(1), the granting of Agilent’s summary judgment motion was nonetheless proper, because plaintiffs failed to make a prima facie showing on their intentional infliction claim against Agilent.
1. Nature of intentional infliction claim
To establish an intentional infliction claim, the plaintiff must show “ ‘ “(1) extreme and outrageous conduct by the defendant with the intention of causing, or reckless disregard of the probability of causing, emotional distress; (2) the plaintiff’s suffering severe or extreme emotional distress; and (3) actual and proximate causation of the emotional distress by the defendant’s outrageous conduct.” ’ ”
(Christensen v. Superior Court
(1991)
It is established that “[o]rdinarily mere insulting language, without more, does not constitute outrageous conduct.”
(Cole v. Fair Oaks Fire Protection Dist.
(1987)
2. Ratification
An employer may be liable for an employee’s willful and malicious actions under principles of ratification. (Civ. Code, § 2339; Rest.2d Agency, § 218.)
28
An employee’s actions may be ratified after the fact by the employer’s voluntary election to adopt the employee’s conduct by, in essence, treating the conduct as its own.
(Rakestraw
v.
Rodrigues
(1972)
But here there was no evidence presented in opposition to the motion for summary judgment indicative of Agilent’s ratification of Moore’s wrongful conduct. The facts as presented in Agilent’s mоtion were that at the time of the initial FBI investigation in late July to mid-August, Agilent (1) had no knowledge of the substance of any e-mail or posting by Moore that was being investigated; (2) was not provided with any details by the FBI about its investigation; (3) was told by the FBI that it was not planning to arrest Moore, that it was “not after Moore’s job,” that Moore was not a threat to anyone, and that Agilent need not be concerned about him; (4) conducted its own investigation but did not discover evidence that Moore used Agilent’s computer systems to send threatening e-mails or Internet postings; and (5) was told by Moore that he had not used Agilent’s computer systems to send any threatening e-mails or other messages. It was not until April 7, 2003—through receipt from the FBI of the arrest affidavit—that Agilent learned the content of Moore’s threatening e-mails and Internet postings that were alleged to have occurred prior to August. Agilent met with Moore shortly thereafter, at which time Moore admitted for the first time that prior to August 12, he had sent some communications through Agilent’s computer systems “ ‘that could be interpreted as a threat.’ ” Agilent placed Moore on administrative leave immediately after the interview and terminated him eight days later.
Based upon these undisputed facts, 29 there was no evidence that Agilent, after the fact, treated Moore’s malicious conduct as its own. There was thus no triable issue as to plaintiffs’ claim that Agilent ratified Moore’s tortious actions.
3. Respondeat superior
We next evaluate plaintiffs’ assertion that Agilent should be held liable for Moore’s tortious conduct under the doctrine of respondeat superior.
Pursuant to this doctrine, “an employer is vicariously liable for his employee’s torts committed within the scope of the employment.”
(Perez v. Van Groningen
&
Sons, Inc.
(1986)
Scope of employment in the application of the respondeat superior doctrine has been given a broad construction.
(Farmers Ins. Group
v.
County of Santa Clara
(1995)
But the scope of vicarious liability is not boundless. “[A]n employer will not be held vicariously liable for an employee’s malicious or tortious conduct if the employee
substantially
deviates from the employment duties for personal purposes. [Citations.] Thus, if the employee ‘inflicts an injury out of personal malice, not engendered by the employment’ [citation] or acts out of ‘personal malice unconnected with the employment’ [citation], or if the misconduct is not an ‘outgrowth’ of the employment [citation], the employee
is not acting within the scope of employment. Stated another way, ‘[i]f an employee’s tort is personal in nature, mere presence at the place of employment and attendance to occupational duties prior or subsequent to the offense will not give rise to a cause of action against the employer under the doctrine of respondeat superior.’ [Citation.] In such cases, the losses do
Applying these principles, we find that Moore’s conduct in sending threatening e-mails and postings through the Internet were plainly outside the scope of his employment with Agilent. Even assuming that Moore used Agilent’s computer system in accessing the Internet to send оne or more of these messages, the injury he inflicted was “out of personal malice, not engendered by the employment.”
(Carr v. Wm. C. Crowell Co.
(1946)
Moreover, the imposition of vicarious liability upon Agilent for Moore’s actions would be inconsistent with the rationale for the respondeat superior doctrine. As our high court has explained, the doctrine is based on “a rule of policy, a deliberate allocation of a risk. The losses caused by the torts of employees, which as a practical matter are sure to occur in the conduct of the employer’s enterprise, are placed upon that enterprise itself, as a required cost of doing business.”
(Hinman
v.
Westinghouse Elec. Co.
(1970)
4. Negligent supervision/retention
“An employer may be liable to a third person for the employer’s negligence in hiring or retaining an employee who is incompetent or unfit. [Citation.]”
(Roman Catholic Bishop v. Superior Court
(1996)
Here, plaintiffs alleged that Agilent knew that Moore was using its computer to accomplish his cyberthreats, that it refused to terminate his employment, and that it instead failed to take measures to prevent their recurrence. Plaintiffs’ negligent supervision/retention theory fails for at least three reasons.
First, it is doubtful that the record supports a finding of the existence of a legal duty owing to plaintiffs by Agilent. In
Agilent argues that plaintiffs were not damaged, and plaintiffs admitted that they sought no treatment for their alleged emotional injuries. Plaintiffs argue that the outrageousness of Moore’s conduct suggests they were damaged. At best, the second Rowland factor neither supports nor opposes a finding of duty.
There was little evidence that Agilent’s conduct had any “closeness” to plaintiffs’ alleged injuries. At most, Agilent supplied Moore with an office computer by which its employee (unbeknownst to Agilent) accessed his personal Internet account and sent threatening messages. Thus, the third Rowland factor does not support a finding of duty.
Moreover, the fourth through seventh
Rowland
factors strongly disfavor liability in this instance. There was no “moral blame” in Agilent’s conduct evidenced by the record. (See, e.g.,
Steven F.
v.
Anaheim Union School Dist., supra,
Second, even were we to assume the existence of a duty, there was no evidence that Agilent breached any duty of care with respect to the supervision or retention of Moore as an employee. As we have noted (see pt. III.D.2.,
ante),
Agilent had no knowledge of the content of any of Moore’s threatening e-mails or postings before receiving the arrest affidavit on April 7, 2003. Most important, it was not until the day Moore was placed on administrative leave (leading to his ultimate termination a few days later) that Agilent learned that Moore had used its computer systems to access his personal Internet account to send threatening messages through the Internet more than eight months earlier. Moreover, Agilent’s internal investigations— оne conducted in August prompted by the FBI’s initial inquiry, and the second conducted after Moore’s February 2003 arrest—did not yield any information that Moore had used Agilent’s computer system to send inappropriate messages over the Internet. Buffington was unable to discover any Internet postings that may have been attributable to Moore. Indeed, plaintiffs—through Delfino’s deposition testimony—admitted the impossibility of tracing an anonymous posting to a particular individual. There were thus no facts presented suggesting that Agilent knew or had reason to suspect that Moore was engaged in improper on-the-job conduct. (See
Federico v. Superior Court (Jenry G.)
(1997)
Third, even were we to assume that Agilent (1) knew or should have known that Moore (prior to August) had allegedly used its computers to send threatening e-mails and postings over the Internet, and (2) took no measures to prevent a recurrence of the threats, there was no evidence that Moore in fact used Agilent’s system after August to threaten plaintiffs.
34
Thus, any negligent supervision and/or retention of Moore by Agilent—which alleged negligence, as we have concluded, was devoid of factual support—was not the cause of plaintiffs’ claimed injuries. (See
Mendoza v. City of Los Angeles, supra,
Plaintiffs failed to present evidence supporting their claim based upon the theory that Agilent was negligent in its supervision and/or retention of Moore. 35
E. Negligent Infliction Claim
The second cause of action was captioned as a purported negligent infliction claim. It incorporated by reference all prior paragraphs of the complaint (including the entire intentional infliction
As we have noted (see fn. 4,
ante),
there is no independent tort of negligent infliction of emotional distress.
(Potter
v.
Firestone Tire & Rubber Co., supra,
Using this analytical framework, we have established from our discussion of negligent supervision and/or retention (sеe pt. III.D.4., ante) the nonviability of plaintiffs’ purported negligent infliction claim. The claimed negligence pertained to Agilent’s retention and supervision of its employee, Moore. As we have discussed, the undisputed evidence showed that plaintiffs did not establish the existence of duty, breach of duty or causation. Accordingly, summary disposition of plaintiffs’ purported negligent infliction claim was proper. 36
DISPOSITION
The judgment entered on the order granting Agilent’s motion for summary judgment is affirmed.
Bamattre-Manoukian, Acting P. J., and McAdams, J., concurred.
Appellants’ petition for review by the Supreme Court was denied February 28, 2007, S149512. Chin, J., did not participate therein.
Notes
Hereinafter, all undesignated statutory references are to title 47 of the United States Code.
To avoid repetition, we present in detail the substance of Agilent’s motion for summary judgment and plaintiffs’ opposition thereto in part Bl.A and B., of the Discussion, post.
Plaintiffs have represented themselves in propria persona in this litigation.
Because of their lengthy titles, for convenience we refer to the two purported causes of action in the complaint as the “intentional infliction” and “negligent infliction” claims, respectively. In so doing, we acknowledge both that a purported claim for negligent infliction is in actuality not a tort separate and apart from the tort of negligence
(Potter
v.
Firestone Tire & Rubber Co.
(1993)
The unrelated lawsuit included claims for defamation that arose out of numerous derogatory messages about Varian and certain Varian employees that Delfino and Day posted on Internet message boards. Judgment on a jury verdict adverse to Delfino and Day (i.e., an award of $425,000 in compensatory damages plus punitive damages of $350,000) was entered in that case. Ultimately, the California Supreme Court reversed on the ground that the previous appeal of Delfino and Day from the trial court’s order denying their special motions to strike under Code of Civil Procedure section 425.16, subdivision (b)(1) (i.e., their motions to strike the Varian complaint as a “SLAPP” [strategic lawsuit against public participation]) operated as a stay on all further trial court proceedings; accordingly, the Supreme Court determined that the judgment was void.
(Varian Medical Systems, Inc. v. Delfino
(2005)
It is unnecessary for us to repeat each of the odious e-mail messages and postings attributed to Moore. One posting (by “crack_smoking jesús”) on July 18 read: “ 1 arranged for you to have a visitor. Have they [szc] been there yet? If not, then they will visit soon. Don’t say I didn’t warn you. Criminal matters are handled less carefully than civil matters.’ ” And plaintiffs alleged in the complaint that on July 30, the following e-mail was sent to Delfino (from “dr_dweezil@yahoo.com”): “ ‘It’s coming [expletive], and you won’t see it. I seriously hope you have health insurance because you’re going to get your ass stomped by me and some friends. The best part will be you won’t be able to prove it was me. I already have proof I was somewhere else. You can look forward to all your fingers getting broken, several kicks to the ribs and mouth, break some teeth, and a cracked head. Also, your car will be trashed and your computer destroyed. Maybe set your place on fire so you can be evicted. If your [expletive] is there, she’ll take a little ride to the parts of San Jose where they don’t speak [EJnglish . . . Die, [expletive]. You’ll wish you had.’ ”
The attorneys who represented Delfino and Day in the unrelated Varian litigation wrote a law review article about the threatening e-mails and their attempts to trace their origin. (See Eisenberg & Rosen, Unmasking “crack_smokingJesus”: Do Internet Service Providers Have a Tarasoff Duty to Divulge the Identity of a Subscriber Who is Making Death Threats? (2003) 25 Hastings Comm. & Ent. L.J. 683.)
A separate judgment that is not a subject of the instant appeal was entered on April 19, 2005, in favor of plaintiffs against Moore after a court trial. The judgment consisted of an award of $87,323 in damages collectively to plaintiffs, plus $200,000 (general damages) and $300,000 (punitive damages) awarded to each of the plaintiffs. Although not a default proceeding, Moore did not participate at the trial either personally or through counsel.
All dates are 2002 unless otherwise stated.
Delfino testified in deposition that since 1997, he and Day had made over 28,000 Internet postings concerning Varían or Moore.
After leaving Agilent in or about May 2003, Stephanie Pierce married and thereafter used Moser as her last name. For clarity and convenience, we refer to the witness by her former surname.
In his lengthy letter to the United States Attorney, Moore admitted guilt, expressed his remorse for the cyberthreats, and presented a detailed account to support his assertion that his actions had been provoked by Delfino’s own Internet activity. The letter contained no description of the method by which Moore had sent the threatening e-mails and postings, did not indicate that Agilent’s computer systems were in any way implicated, and mentioned Agilent only in the following contexts: (1) that Moore was fearful that his actions would result in the loss of his Agilent job; and (2) that some of Delfino’s alleged provocative acts involved postings using Moore’s name on “Agilent stock message boards [stating] some negative and crude things about [Agilent].”
Agilent’s Standards of Business Conduct, under the heading “May I use Agilent computers . . . for personal messages, personal access to the Internet or other personal use?” read in part: “[C]ertain messages and materials simply must not be sent or accessed on Agilent equipment or through Agilent systems; these include . . . threatening, sexually explicit or harassing materials. You must not use Agilent resources to create, transmit, store or display messages, images or materials in any of these categories. Misuse of Agilent assets is misconduct and may result in termination of your employment.”
Moore ultimately pleaded guilty in September 2003 to one count of violating section 1512(d)(4) of title 18 of the United States Code (intentional harassment to dissuade another from assisting in a criminal prosecution). (The offense of which Moore was convicted did not involve the use of Agilent’s computer system.) He was placed on probation for a period of four years.
There are a number of other instances in which plaintiffs claimed in their response to Agilent’s separate statement that material facts were disputed when, in reality, no evidence demonstrating such dispute was cited. These undisputed material facts included the following: (a) the FBI assured Agilent on July 30 that Moore was a threat to no one, that no arrest was planned, and that Agilent need not be concerned about him (UMF No. 6); (b) Agilent’s early August internal investigation did not disclose that Moore had used its computer system to send any threatening e-mails or postings (UMF No. 11); (c) when Agilent reprimanded Moore on August 12, he did not admit to using its computer system to make any threatening Internet postings and denied using Agilent’s system to send any e-mail threats (UMF No. 13); (d) no Agilent employee knew about, assisted with, participated in, or had any involvement with Moore’s cyberthreats (UMF No. 16); (e) Agilent’s second internal investigation conducted after Moore’s February 2003 arrest did not disclose that Moore had made any cyberthreats (UMF No. 18); and (f) Agilent did not learn the substance of Moore’s threatening e-mails and postings until it received the arrest affidavit on April 7, 2003 (UMF No. 19).
Since the passage of the CDA in 1996, “[p]arts of [it] have . . . been struck down as unconstitutional limitations on free speech,
see Reno v. ACLU,
“No provider or user оf an interactive computer service shall be held liable on account of—H] (A) any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected; or H] (B) any action taken to enable or make available to information content providers or others the technical means to restrict access to material described in paragraph [(A)].” (§ 230(c)(2), fn. omitted.) The end of the actual text of the statute refers to “paragraph (1).” But it is apparent that the reference should be to “paragraph (A).” (See § 230(c)(2), fn. 1.)
Plaintiffs refer repeatedly to a decision critical of
Zeran
by the First District Court of Appeal (Div. Two) for which review was subsequently granted by the Supreme Court. (See
Barrett
v.
Rosenthal
(Cal.App.), review granted Apr. 14, 2004, S122953.) Such grant of review by the Supreme Court of course “had the effect of depublishing” the Court of Appeal’s decision.
(Quintano v. Mercury Casualty Co.
(1995)
An Internet bulletin board is “a computerized version of a cork and pin board on which users can post, read, and respond to messages.” (Weber, Defining Cyberlibel: A First Amendment Limit for Libel Suits Against Individuals Arising from Computer Bulletin Board Speech (1995) 46 Case W. Res. L.Rev. 235, 238, fn. omitted.) After logging in to an Internet bulletin board, a person may post messages, respond to messages already posted, or simply read the discussions without posting any messages. (Id. at p. 239.) Most Internet bulletin boards permit participants to use pseudonyms. (Id. at p. 241.)
Section 230(f)(2)—which, at the time Zeran was decided was codified under section 230(e)(2)—provides: “The term ‘interactive computer service’ means any information service, system, or access software provider that provides or enables computer access by multiple users to a computer server, including specifically a service or system that provides access to the Internet and such systems operated or services offered by libraries or educational institutions.”
Section 230(f)(3)—which, at the time Zeran was decided was codified under section 230(e)(3)—provides: “The term ‘information content provider’ means any person or entity that is responsible, in whole or in part, for the creation or development of information provided through the Internet or any other interactive computer service.”
The Seventh Circuit Court of Appeals has acknowledged that there is no appellate decision contrary to Zeran’s holding that section 230(c)(1) affords immunity to Web hosts and other Internet service providers for state law claims based upon offensive material created by others and published over the Internet.
(Doe v. GTE Corp.
(7th Cir. 2003)
Under the CDA, it is of course possible to be both an interactive computer service provider
and
“an information content provider; the categories are not mutually exclusive.”
(Gentry v. eBay, Inc., supra,
Moreover, even had Agilent played some minor role in the formulation of Moore’s messages—a matter unsupported by the evidence here—such conduct would not transform it to the status of an information content provider to defeat CDA immunity. (See
Carafano
v.
Metrosplash.com, Inc., supra,
We recognize that there is an existing debate concerning whether immunity under the CDA applies equally to both publishers and distributors of information authored by third parties and disseminated over the Internet. (See, e.g., Doe v. America Online, Inc., supra, 783 So.2d at pp. 1018-1028 (dis. opn. of Lewis, J.); Freiwald, Comparative Institutional Analysis in Cyberspace: The Case of Intermediary Liability for Defamation (2001) 14 Harv. J.L. & Tech. 569, 637-642; Sheridan, Zeran v. AOL and the Effect of Section 230 of the Communications Decency Act upon Liability for Defamation on the Internet (1997) 61 Alb. L.Rev. 147, 167-172.) Our Supreme Court has recently held that a party who distributes a defamatory statement made by a third party over the Internet—even if he or she knows or should know of the statement’s defamatory character—enjoys the same CDA immunity from suit as an initial publisher of such a statement. (Barrett v. Rosenthal, supra, 40 Cal.4th at pp. 57-58.) Thus, under Barrett—although Agilent did not act as a distributor of Moore’s offensive e-mails and postings, and at most merely provided the means of communicating the messages by Moore’s use of his employer’s computer to access the Internet to send the messages—CDA immunity applies in this instance irrespective of whether Agilent is deemed to have been a publisher or distributor.
Citing
Hustler Magazine
v.
Falwell
(1988)
The allegation in the complaint directed toward Agilent reads: “Upon information and belief, at all relevant times, Agilent was informed and knew that Moore was using its computer system to carry out these acts against [plaintiffs. Agilent failed to terminate Moore’s employment, and instead assented to his continued use of its computer system for this unlawful purpose and failed and refused to take measures to stop [Moore’s] activities notwithstanding that they were contrary to Agilent’s own corporate policies, thereby ratifying his tortious misconduct.”
Employer derivative liability for employee actions need not be founded on respondeat superior, but may be based upon the doctrine of ratification.
(Murillo v. Rite Stuff Foods, Inc.
(1998)
While (as we have mentioned in pt. HUB,
ante)
plaintiffs claimed in their separate statement in opposition to the motion that a number of these key facts were disputed, a careful review of the supporting and opposing evidence reveals that there was no actual dispute. (See
Uhrich v. State Farm Fire & Casualty Co.
(2003)
Thus, in a number of instances, courts have concluded that the employer was not liable for its employee’s intentional tort where the employee’s act was outside the scope of his or her employment. (See, e.g.,
Lisa M.
v.
Henry Mayo Newhall Memorial Hospital
(1995)
We acknowledge that whether the employee’s cоnduct was within the scope of his or her employment is generally a question for the trier of fact.
(Ducey
v.
Argo Sales Co., supra,
The district court’s holding in
Booker
that the employees’ tortious acts were outside the scope of their employment was based upon the conclusion that transmission of the offensive e-mails by means of false third party e-mail accounts “was most certainly
not
sent in furtherance of [the employer’s] business,” and was not a matter that was expected in light of the employees’ duties.
(Booker v. GTE.net LLC, supra,
Thus, for instance, the
Rowland
seven-factor test was applied by the court in
Steven F. v. Anaheim Union School Dist.
(2003)
The November cyberthreat for which Moore ultimately pleaded guilty indisputably was made without use of Agilent’s computer system.
As is the case with respondeat superior, while we acknowledge that negligent retention is generally a question of fact, it is one of law if no reasonable jury may conclude based upon the undisputed facts that liability exists.
(Federico
v.
Superior Court (Jenry G.), supra,
For the first time on appeal, plaintiffs argue that Agilent is subject to negligence liability under the theory that—as an extension of the
Tarasoff (Tarasoff
v.
Regents of University of California
(1976)