California Courts of Appeal Reports

DELFINO v. AGILENT TECH., INC., H028993 (Cal.App.
12-14-2006) MICHELANGELO DELFINO et al., Plaintiffs and
Appellants, v. AGILENT TECHNOLOGIES, INC., Defendant and
Respondent. H028993 Court of Appeal of California, Sixth
District December 14, 2006

Appeal from Superior Court of Santa Clara County, No.
1-03-CV-001573, Kevin E. McKenney, Judge.

Michelangelo Delfino, in pro. per.; Mary E. Day, in pro.
per for Plaintiffs and Appellants.

Bradford K. Newman, Katherine C. Huibonhoa, Shannon S.
Sevey, PAUL, HASTINGS, JANOFSKY & WALKER attorneys for
Defendant and Respondent.


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),[fn1] 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.


The complaint was filed on July 22, 2003.[fn3] It included
a claim for intentional infliction of emotional distress
and a purported claim for negligent infliction of emotional
distress against Moore and Agilent.[fn4] 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

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.[fn5] The threats alleged in the
complaint — most of which were directed solely at
Delfino — were either email messages sent to Delfino
or were messages posted on the Yahoo! Message Board
VAR.[fn6] 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

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.[fn8]
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,


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

II. Standard of Review

As we have acknowledged, “[c]onstruction and application of
a statute involve questions of law, which require
independent review.” (Murphy v. Padilla (1996) 42
Cal.App.4th 707, 711; see also Elene H. v. County of Los
Angeles (1990) 220 Cal.App.3d 1445, 1451 [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 [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,

III. The Order Granting Summary Judgment

A. Agilent’s Motion

On July 26, 2002,[fn9] 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”;[fn10] (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,[fn11] 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 would not engage in any further
similar conduct and thereafter provided Agilent with a copy
of his letter to the United States Attorney.[fn12] Pierce
gave Moore a stern 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[fn13] and warned him that . . . he should not be
using Agilent’s computer systems for anything relating to
[plaintiffs] or any other personal issues.”

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

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 underscore.) 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 misuse of
Agilent’s assets.”[fn14]

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 number 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 in
either document. (Indeed, the two spliced excerpts of the
arrest affidavit were separated by three pages of text.) In
any event, the purported evidence plaintiffs cited did not
demonstrate that UMF number 7 was disputed.[fn15]

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.