SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF LOS ANGELES

THOMAS KEMPF,
Plaintiff,

V.

TIME, INC., a corporation; TIME INC., NEW MEDIA, a corporation; DAVID McCLINTICK, and individual; GEOFFREY COLVIN; EARTHLINK, INC., a corporation; PRODIGY SERVICES, INC., a corporation, AMERICA ONLINE, INC., a corporation; and DOES 1 through 100, inclusive,
Defendants.

Case No. BC 184799

Assigned For All Purposes

Hon. James S. Otero (Dept. 68)

NOTICE OF RULING AND DISMISSAL OF ALL CLAIMS AGAINST DEFENDANTS EARTHLINK NETWORK INC., PRODIGY SERVICES CORPORATION, AND AMERICA ONLINE, INC. WITHOUT LEAVE TO AMEND

Action Filed: January23, 1998
Trial Date: Not Set

Hearing:
Date: June11, 1998
Time: 8:30 a.m
Place: Dept. 68

TO ALL PARTIES HEREIN AND THEIR ATTORNEYS OF RECORD:

PLEASE TAKE NOTICE that on June 11, 1998 at 8:30 a.m., in Department 68 of the above-entitled Court located at Ill North Hill Street, Los Angeles, California, before the Honorable James S. Otero, the following matters came on for hearing: (1) Defendants EarthLink Network, Inc.’s, Prodigy Services Corporation’s, and America Online, Inc.’s (collectively, the "Internet Service Providers" or "ISPs") Demurrers to Plaintiff’s Complaint; and (2) The ISPs’ Special Motion to Strike Plaintiff’s Complaint pursuant to C.C.P. Section 425.16.

Daniel Scott Schecter of Latham & Watkins appeared on behalf of moving pates EarthLink Network, inc., Prodigy Services Corporation, and America Online, Inc. Neil S. Jahss of O’Melveny & Myers LLP appeared on behalf of Time, Inc., Time Inc. New Media, and Geoffrey Colvin. Robert L. Wilson, Esq. appeared on behalf of Plaintiff Thomas Kempf.

The Court, having read and considered the moving papers filed by the Internet Service Providers, and the papers filed by Plaintiff in opposition to the ISPs’ Demurrers and Special Motion to Strike, and having heard oral argument, ruled as follows:

1. The Demuners of EarthLink Network, inc., Prodigy Services Corporation, and America Online, Inc. to Plaintiff’s Complaint are SUSTAINED WITHOUT LEAVE TO AMEND. Plaintiffs first and second causes of action are dismissed against EarthLink Network, Inc., Prodigy Services Corporation, and America Online. Inc. without leave to amend.

2. The Court found as follows:

A. Section 230(c)(1) of the Communications Decency Act ("CDA")(47 U.S.C. § 230), applies to and bars Plaintiff’s claims against the ISPs.

B. Section 230(c)(2) of the CDA is a "Good Samaritan" provision and is inapplicable to Plaintiff’s claims against the ISPs.

C. Plaintiff’s Complaint fails to state facts sufficient to support a cause of action against the ISPs, and Plaintiff cannot possibly amend his Complaint to allege facts sufficient to support a cause of action and avoid application of Section 230(c)(1) of the CDA.

3. Plaintiffs counsel stated on the record that Plaintiff does not claim tat any of the ISPs had any role in the creation or development of the allegedly libelous material on which the Complaint is based.

4. In addition to the foregoing, the Court’s ruling is based on counsel for Plaintiffs statements and the decisions in Zeran v. America Online Inc., 129 F.3d 327 (4th Cir. 1997), petition for cert. filed (Mar. 9, 1998); Blumenthal v. Drudge. 1998 U.S. Dist. LEXIS 5606 (D.D.C. April 22, 1998); Doe v. America Online, Inc., Case No. CL97-631AE (Fla. Cir. 1997).

5...The Court denied the 151’s’ Special Motion to Strike. The Court found that the ISPs cannot meet their burden of proving that Plaintiff’s claims arise from an act "in furtherance of the exercise of thc constitutional right of free speech", because the ISPs did not contribute content to the allegedly libelous material on which the Complaint is based. Therefore, the Court found that Plaintiff’s claims do not fall within the ambit of Section 425.16.

6. The Court declines to award fees or sanctions.

Dated: June 11, 1998

LATHAM & WATKINS
Miles N. Ruthberg
Daniel Scott Schecter