Internet Tort Case DISPOSITION OF SUMMARY JUDGMENT MOTIONS IN IN

This essay analyzes the correctness in terms of its conclusions and reasoning of the draft disposition by the state court trial judge of motions for summary judgment filed by plaintiffs and defendants in the subject case.

The draft disposition should be substantially revised and many of its conclusions altered, especially those relating to the granting of defendant Phishy Corp.'s motions because it is based on faulty readings of the applicable state tort law and employs reasoning which would be more appropriate in a judgment after trial than in responding to motions for summary judgment.

State and federal courts generally employ the same standard in disposing of motions for summary judgment. See, for example, Rule 56 of the Federal Rules of Civil Procedure and sec. 437(c) of the California Code of Civil Procedure. The latter provides that the court may grant summary judgment motions only if "there is no triable issue as to any material fact and the moving party is entitled to a judgment as a matter of law." The principal difficulty with the trial judge's draft disposition is that it weighs the factual evidence as a trial judge would at trial rather than determining whether any factual triable issues are presented by the summary judgment motions.

Plaintiffs request that their summary judgment motions concerning intentional torts allegedly committed by defendants be granted and defe

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st instance this task should be left to the state legislature, not the courts. However, in doing so it would be taking a conservative, some might even say reactionary stance. In some cases in which tort liability has been expanded so as to correct abuses, the legislature has acted; in others, such as the elimination of the defense of charitable immunity, the courts have taken the lead in promulgating lasting and needed reforms. Fraud Issues. The court in its draft disposition would relieve Phishy Corp. and the Bank from any possible responsibility for fraud committed on the plaintiffs. Little, if any, evidence has been presented that the Bank intended to commit any fraud on its customers. However, Phishy Corp. has acted recklessly to an extreme. The court says that with respect to Phishy "plaintiff has not shown that the company knew or had reason to know that perpetrators of fraud would purchase the mail database" nor that Phishy acted from a fraudulent purpose. However, Phishy certainly knew that its actions were facilitating fraud by others. Indeed the whole purpose of its actions was to obtain illegal access to confidential information and to disseminate to others who would use it without the consent of the plaintiffs. I wou
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Approximate Word count = 2409
Approximate Pages = 10 (250 words per page)

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