Mezger v. Bick

Filed 7/1/21
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
SANDRA MEZGER et al., B305745
Plaintiffs and Appellants, (Los Angeles County
Super. Ct. No. BC714748)
v.
RANDY RALPH BICK, JR., et
al.,
Defendants and Respondents.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Holly J. Fujie, Judge. Affirmed.
Glaser Weil Fink Howard Avchen & Shapiro, Craig H.
Marcus and Cynthia E. Organ for Plaintiffs and Appellants.
Lewis Brisbois Bisgaard & Smith, Jeffry A. Miller,
Wendy S. Dowse, Dana S. Fox and Michael S. Moss for
Defendants and Respondents.
**********
This is a dispute between neighbors. Plaintiffs Sandra and
Jeffrey Mezger allege their neighbors, comedian Kathleen Griffin
and her boyfriend Randy Ralph Bick, Jr., invaded their right to
privacy by recording images of the plaintiffs’ backyard and audio
of their private conversations with their iPhones and Nest
security cameras. Defendants moved for summary adjudication
of plaintiffs’ privacy claims. The trial court concluded that any
privacy intrusion was insubstantial and granted summary
adjudication in defendants’ favor. We affirm.
BACKGROUND
Plaintiffs sued defendants in July 2018, alleging causes of
action for nuisance, violation of Penal Code section 632, invasion
of the common law right of privacy, invasion of the California
constitutional right of privacy, invasion of privacy, false light,
and nuisance in violation of the municipal code. Plaintiffs alleged
defendants moved next door in July 2016 and immediately began
making noise complaints about plaintiffs to their homeowners
association (HOA) and to the Los Angeles Police Department.
Plaintiffs alleged defendants initially made iPhone video
recordings of their backyard, and later installed a Nest “audio-
video surveillance system, point[ed] . . . directly into [plaintiffs’]
back yard in order to spy on and record them.” Plaintiffs alleged
the goal of the camera system was to gather evidence so
defendants could make further complaints to the HOA.
Plaintiffs first learned of the recordings in September 2017,
after police came to their home in response to a noise complaint
and told plaintiffs defendants had recorded them. A few days
later, defendants released one of the recordings to the Huffington
Post. The recording included an expletive-laden rant by
Mr. Mezger, who was apparently angry after defendants called
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police complaining about a backyard pool party for his
grandchildren. Recordings from other occasions were given to
other media outlets. Ms. Griffin also used some of the recordings
during her stage performances.
Plaintiffs alleged the recordings also captured private
conversations occurring within their home, based on the position
of one of the cameras. Plaintiffs alleged the recording was
constant and continuous, and prevented them from using their
backyard or opening their windows.
Plaintiffs alleged there was no legitimate security interest
in operating the surveillance system because the parties live in a
gated community with guarded access and constant patrols. And,
given the timing of the installation of the camera (immediately
after the HOA found plaintiffs had not violated any rules),
plaintiffs believed the true purpose of the system was to spy on
plaintiffs.
Ms. Griffin moved for summary adjudication of the causes
of action for violation of Penal Code section 632, common law
invasion of privacy, and constitutional invasion of privacy, and
Mr. Bick joined Ms. Griffin’s motion, with his own separate
statement and compendium of evidence (which was nearly
identical to that submitted by Ms. Griffin).
In support of the motion, Ms. Griffin testified she is a
public figure, and has received death threats and been stalked in
the past. To ensure her personal safety, she had a Nest security
system installed on her property. The security system is entirely
on her own property. The cameras were “positioned in such a
way . . . to maximize [her] security.” “To the extent that any of
[her] security cameras ever detected any portion of the Mezger
property, that was an unintended, collateral consequence due to
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the maximization of the security system, given the topography of
[her] property.”
Ms. Griffin’s second floor bedroom is accessible by a
staircase from her backyard. To capture the entire staircase and
the balcony outside her bedroom, the camera incidentally
captured a portion of plaintiffs’ yard. A screenshot from the
camera outside Ms. Griffin’s second story bedroom shows the
camera’s vantage point. The screenshot consists mostly of the
balcony outside Ms. Griffin’s bedroom and the stairs leading from
the balcony to the backyard. A portion of plaintiffs’ backyard,
including their pool, can be seen in the screenshot.
According to Ms. Griffin, the Mezgers have frequently
hosted loud parties and events at their home, causing Ms. Griffin
to make noise complaints to the HOA and the police. She made
brief videos on her phone to substantiate her noise complaints.
She was on her property at all times while making the videos.
Mr. Bick also testified that he “never placed any part of [his]
body, or any recording device (including [his] iPhone and the
Nest), over the Mezgers’ property line.” Any recorded sounds
“were so loud that they emanated onto Kathy’s property from the
Mezgers’ property.”
According to Ms. Griffin, she never knowingly recorded any
conversations or activities occurring within plaintiffs’ home. The
camera plaintiffs claim is near one of their windows is a
nonoperational camera installed by the previous owners.
In their discovery responses, plaintiffs admitted that
Ms. Griffin had a right to install cameras on her property, and
that they had security cameras at their properties in Arizona and
Goleta, California.
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In opposition to defendants’ motion, plaintiffs submitted
evidence the security cameras were installed nine months after
defendants had moved into the home, on the same day the HOA
determined there was no merit to the noise complaints lodged by
defendants. The HOA had told Mr. Bick he and Ms. Griffin
needed to “document” plaintiffs’ conduct to substantiate their
claims, and defendants admitted the security system was
installed to document the extent of the noise disturbances
affecting their property. Ms. Griffin instructed her personal
assistant to review the recordings daily for audio of plaintiffs.
Plaintiffs’ and defendants’ properties were separated by a
six-foot tall concrete wall, with two feet of wrought iron on top.
Defendants’ second floor balcony was visible from some parts of
plaintiffs’ backyard, and defendants had a view of plaintiffs’
backyard from their balcony. Defendants’ balcony was
approximately 60 feet away from plaintiffs’ house.
Plaintiffs testified the recordings were made without their
knowledge or consent. They “expected that [their]
communications and activities on [their] own property would not
be recorded.” Plaintiffs first became aware of the recordings in
September 2017, when the police informed them defendants had
made recordings of them.
Mr. Bick personally installed one of the Nest security
cameras and knew the camera captured portions of plaintiffs’
backyard. He tried to “tweak down the camera to not focus on
the property. If it was incidentally looking at it . . . that was not
[his] focus. That’s why [he] had to readjust it and focus on the
staircase landing.”
Defendants’ Nest surveillance camera included a single
microphone that was capable of recording a normal conversation
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60 feet away. When Mr. Bick installed the Nest surveillance
camera on April 21, 2017, he understood the camera could record
loud audible sounds coming from plaintiffs’ property. Defendants
eventually replaced their single surveillance camera with
three new cameras, and each new surveillance camera included
three microphones that captured sound at the same distance as
the other single microphone camera.
Also included with plaintiffs’ opposition evidence was a
flash drive, labeled Exhibit 12, which contained recordings from
the Nest system, and an iPhone recording made by defendants.
The recordings purport to show the extent of the privacy
invasion. In his declaration, Mr. Mezger testified that in the
videos, he and his guests were speaking at “normal
conversational tones” and did not know they were being recorded.
We quote below the trial court’s thorough description of the
files contained in Exhibit 12.
“1. A file named ‘1—Exhibit No. 11—Mezger Backyard
Yelling V1 3.16.17.m4a’ [is an audio recording] which is
35 seconds in length and consists of little comprehensible audio.
The Court can ascertain a male voice using an expletive at
approximately four seconds stating that: (1) someone called his
cellphone; (2) he told them to come up here; [and] (3) using an
expletive a second time. This recording also consists of a female
voice using an expletive and voices speaking at the same time
from the 19 second mark until the end of the recording.
“2. A file named ‘2—Exhibit No. 12—Mezger Backyard
Yelling V2 3.16.17.m4a’ [is an audio recording] which is
22 seconds in length and consists of numerous parties speaking
with expletives being used throughout the conversation. The
sound is barely audible. A male voice is heard saying ‘[inaudible]
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10:30 . . . you can do whatever you want at 10:30 [inaudible] . . .
everyone’s got attorneys [inaudible].’
“3. A file named ‘3—Exhibit No. 38—Jeff Mezger Threat
FULL 9.16. 17 at 909 PM.’ This file is from the Nest security
system that is placed on Griffin’s second floor patio. It is a video
recording that contains audio. You can see Griffin’s patio, steps
leading down to her backyard, and trees in her backyard from
this video recording. This specific video recording shows very
little of Plaintiffs’ backyard as the recording was taken at night.
In this recording, Mr. Mezger is saying ‘Hey, Randy, go f**k
yourself, seriously you called on my grandkids at 9 o’clock?
You’re not even the f***king owner. You’re stuck with a f*****g
bald d**e who, uh, Donald Trump kinda put the heat on. Now
you’re calling the cops? F**k You, and f**k Kathy. You’re not
our f*****g neighbor, you’re a f*****g a*****e.’ At 34 seconds a
female voice states ‘What’s going on?’ Mr. Mezger then says ‘let’s
declare war.’ Mr. Mezger then proceeds to continue speaking in a
loud voice and using expletives toward Griffin and Bick.
Mr. Mezger’s voice is clearly heard on this recording and his voice
is the first voice heard on this particular recording.
Mrs. Mezger’s voice can also be heard on this recording. This
recording is 1 minute and 44 seconds in length.
“4. A file named ‘6—Kathy Intimidation With Kids 5.4.18.’
This file is from the Nest security system that is placed on
Griffin’s second floor patio. It is a video recording that contains
audio. The primary focus of the video is on Griffin’s patio, steps
leading down to her backyard, and trees in her backyard. You
can only see a small part of Plaintiffs’ property on this recording.
The audio on this recording consists of numerous people speaking
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and the audio is not clearly comprehensible as it has a lot of
static.
“5. A file named ‘7—Mezger Pool Party 9.16.17.’ This file
is from the Nest security system that is placed on Griffin’s second
floor patio. It is a video recording that contains audio. It was
recorded in the daylight hours. The primary focus of the video is
Griffin’s patio, steps leading down to her backyard, and trees in
her backyard. You can only see a relatively small portion of
Plaintiffs’ backyard and the corner of what appears to be
Plaintiffs’ pool, and this view appears to be incidental to the focus
of the video on Griffin’s property. At no point do you see any
people in the recording. The recording consists of very little
comprehensible audio.
“6. A file named ‘9—Clip (May 25[,] 2017 at 1059 PM).’
This file is from the Nest security system that is placed on
Griffin’s second floor patio. It is a video recording that contains
audio. The primary focus of the video is Griffin’s patio, steps
leading down to her backyard, and trees in her backyard. You
can see a small portion of Plaintiffs’ patio, which is lighted;
however, the rest of their property cannot be seen as the video
was taken during the nighttime hours. The audio on this
recording consists of numerous people speaking and most of the
audio is not clearly comprehensible as it has a lot of static. This
recording is 25 seconds in length.
“7. A file named ‘9—IMG_4360.’ This file is from the Nest
security system that is placed on Griffin’s second floor patio. It is
a video recording that contains audio. It was recorded in the
daylight hours. The primary focus of the video is Griffin’s patio
railing and a portion of Griffin’s backyard. The video also shows
a portion of Plaintiffs’ backyard with a gathering of about
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16 people moving in Plaintiffs’ backyard during the 6 second
recording. The audio on this video recording consists only of loud
music.
“8. A file named ‘10—Clip (May 25[,] 2017 at 1100 PM(1)).’
This file is from the Nest security system that is placed on
Griffin’s second floor patio. It is a video recording that contains
audio. The primary focus of the video is Griffin’s patio, steps
leading down to her backyard, and trees in her backyard. You
can see only a small portion of Plaintiffs’ patio, which is lighted,
and you cannot see any people in this recording as it was taken
during the nighttime hours. The audio on this recording consists
of numerous people speaking loudly and most of the audio is not
clearly audible as it has a lot of static and music playing. This
recording is 29 seconds in length; however, the audio cuts off at
25 seconds.
“9. A file named ‘11—Clip (May 25[,] 2017 at 1100 PM).’
This file is from the Nest security system that is placed on
Griffin’s second floor patio. It is a video recording that contains
audio. The primary focus of the video is Griffin’s patio, steps
leading down to her backyard, and trees in her backyard from
this video recording. You can see into a small portion of
Plaintiffs’ backyard, however, you cannot see any people in this
recording as it was taken during the nighttime hours. The audio
on this recording consists of numerous people speaking loudly
and most of the sound is not clearly audible as it has a lot of
static and music playing.
“10. A file named ‘12—Clip (May 25[,] 2017 at 1102
PM(1)).’ This file is from the Nest security system that is placed
on Griffin’s second floor patio. It is a video recording that
contains audio. The primary focus of the video is Griffin’s patio,
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steps leading down to her backyard, and trees in her backyard.
You can see a small part of Plaintiffs’ patio, which is lighted;
however, you cannot see any people in this recording as it was
taken during the nighttime hours. The audio on this recording
consists of numerous people speaking loudly and most of the
audio is not clearly audible as it has a lot of static. From what is
audible the Court can hear a few expletives along with a few
phrases.
“11. A file named ‘13—Clip (May 25[,] 2017 at 1102 PM).’
This file is from the Nest security system that is placed on
Griffin’s second floor patio. It is a video recording that contains
audio. The primary focus of the video is Griffin’s patio, steps
leading down to her backyard, and trees in her backyard. You
can see a small part of Plaintiffs’ lighted patio; however, you
cannot see any people in this recording as it was taken during the
nighttime hours. The audio on this recording consists of
numerous people speaking loudly and most of the audio is not
clearly audible as it has a lot of static. From what is audible the
Court can ascertain a few expletives along with a few
phrases[, like ‘my hair is wet,’ ‘where’s Becky’s camera,’ and ‘oh
my God’].
“12. A file named ‘14—Clip (May 25[,] 2017 at 1104
PM((1)).’ This file is from the Nest security system that is placed
on Griffin’s second floor patio. It is a video recording that
contains audio. The primary focus of the video is Griffin’s patio,
steps leading down to her backyard, and trees in her backyard.
You can see a small part of Plaintiffs’ lighted patio; however, you
cannot see any people in this recording as it was taken during the
nighttime hours. The audio on this recording consists of
numerous people speaking loudly and most of the audio is not
10
clearly audible as it has a lot of static. From what is audible the
Court can ascertain a few phrases.
“13. A file named ‘15—Clip (May 25[,] 2017 at 1104 PM).’
This file is from the Nest security system that is placed on
Griffin’s second floor patio. It is a video recording that contains
audio. The primary focus of the video is Griffin’s patio, steps
leading down to her backyard, and trees in her backyard. You
can see a small part of Plaintiffs’ lighted patio; however, you
cannot see any people in this recording as it was taken during the
nighttime hours. The audio on this recording consists of
numerous people speaking loudly and most of the audio is not
clearly audible as it has a lot of static. From what is audible the
Court can ascertain a few phrases.
“14. A file named ‘16—Clip (May 25[,] 2017 at 1105 PM).’
This file is from the Nest security system that is placed on
Griffin’s second floor patio. It is a video recording that contains
audio. The primary focus of the video is Griffin’s patio, steps
leading down to her backyard, and trees in her backyard. You
can see a small portion of Plaintiffs’ lighted patio; however, you
cannot see any people in this recording as it was taken during the
nighttime hours. The audio on this recording consists of
numerous people speaking loudly and most of the audio is not
clearly audible as it has a lot of static. From what is audible the
Court can ascertain a few comprehensible phrases.
“15. A file named ‘SOUTHHAMPTION (1) (INC
170916004587)_Red.’ This file is Bick reporting a disturbance at
Plaintiffs’ residence. Bick stated that it was a loud party that
sounded like adults shouting at one another as well as kids
screaming in the pool.”
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For the February 19, 2020 hearing on the motion, the court
issued a lengthy tentative ruling proposing to grant the motion.
Following oral argument, the court took the matter under
submission. On March 2, 2020, the court issued its ruling
granting the motion.
Thereafter, plaintiffs filed an ex parte application asking
the court to vacate its order granting the motion, and to allow
further evidence in support of their opposition, such as expert
testimony regarding the sensitivity of the cameras’ microphones.
The trial court granted the motion in part.
Plaintiffs filed a supplemental opposition, supported by
additional evidence, including additional declarations by each
plaintiff, further testifying to the characteristics of their
backyard, use of their backyard, desire for privacy, and how they
have ceased using their backyard due to defendants’ invasion of
privacy. Plaintiffs testified they “believed that [their] activities
and communications within [their] backyard were entirely
private and would not be overheard or recorded. [They] expected
that [their] conduct and communications in [their] private
backyard would remain private.” They also provided declarations
from two experts purporting to analyze the videos plaintiffs had
submitted in support of their original opposition to the motion.
Certified Audio/Video Forensic Analyst Jim Hoerricks,
provided a declaration in which he opined that “the sound of the
voices on the recordings is amplified and sounds louder than the
actual volume of the voices when they were recorded.”
Certified Protection Professional Jeffrey Zwirn submitted a
declaration testifying he has been “involved in the security
survey, needs analysis, recommendations, design, installation,
inspection, testing, maintenance, and monitoring of over
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5,000 security systems.” He opined defendants’ Nest “cameras
contain one or more amplified and highly sensitive microphones.
These microphones are designed to pick up audio from all
directions, which includes sounds happening off camera. Nest
software automatically processes audio from each of the
microphones and utilizes echo cancellation and noise suppression
to enhance the clarity of the recorded sounds” and the cameras
have the “ability to record sounds that in many instances would
not be heard by the human ear.” He also testified that
“[n]ationally recognized industry standards and best practices
require that outdoor security cameras do not surveil an adjacent
property due to privacy concerns,” and that the cameras could
have been positioned so that they did not capture plaintiffs’
property.
On March 16, 2020, the trial court granted the motion,
finding the additional evidence did not create a material dispute
and defendants’ conduct had an “insubstantial impact on
Plaintiffs’ privacy interests.” Plaintiffs dismissed their
remaining claims, and this timely appeal followed.
DISCUSSION
“[T]he party moving for summary judgment bears the
burden of persuasion that there is no triable issue of material fact
and that he is entitled to judgment as a matter of law.” (Aguilar
v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850 (Aguilar).)
“Once the [movant] has met that burden, the burden shifts to the
[other party] to show that a triable issue of one or more material
facts exists as to [that] cause of action . . . .” (Code Civ. Proc.,
§ 437c, subd. (p)(2); Aguilar, at p. 850.) The party opposing
summary judgment “shall not rely upon the allegations or denials
of its pleadings to show that a triable issue of material fact exists
13
but, instead, shall set forth the specific facts showing that a
triable issue of material fact exists . . . .” (§ 437c, subd. (p)(2).)
A triable issue of material fact exists where “the evidence would
allow a reasonable trier of fact to find the underlying fact in favor
of the party opposing the motion in accordance with the
applicable standard of proof.” (Aguilar, at p. 850.)
Our Supreme Court has made clear that the purpose of the
1992 and 1993 amendments to the summary judgment statute
was “ ‘to liberalize the granting of [summary judgment]
motions.’ ” (Perry v. Bakewell Hawthorne, LLC (2017) 2 Cal.5th
536, 542; Aguilar, supra, 25 Cal.4th at p. 854.) It is no longer
called a “disfavored” remedy. (Perry, at p. 542.) “Summary
judgment is now seen as a ‘particularly suitable means to test the
sufficiency’ of the plaintiff’s or defendant’s case.” (Ibid.) On
appeal, “we take the facts from the record that was before the
trial court . . . . ‘ “We review the trial court’s decision de novo,
considering all the evidence set forth in the moving and opposing
papers except that to which objections were made and
sustained.” ’ ” (Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th
1028, 1037, citation omitted.)
1. Common Law Invasion of Privacy
The elements of a common law invasion of privacy claim
are intrusion into a private place, conversation, or matter, in a
manner highly offensive to a reasonable person. (Huntingdon
Life Sciences, Inc. v. Stop Huntingdon Animal Cruelty USA, Inc.
(2005) 129 Cal.App.4th 1228, 1259.) In determining the existence
of “offensiveness,” one must consider: “(1) the degree of intrusion;
(2) the context, conduct and circumstances surrounding the
intrusion; (3) the intruder’s motives and objectives; (4) the setting
into which the intrusion occurs; and (5) the expectations of those
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whose privacy is invaded.” (Sanchez-Scott v. Alza Pharms. (2001)
86 Cal.App.4th 365, 377.)
“Actionable invasions of privacy must be sufficiently
serious in their nature, scope, and actual or potential impact to
constitute an egregious breach of the social norms underlying the
privacy right. Thus, the extent and gravity of the invasion is an
indispensable consideration in assessing an alleged invasion of
privacy.” (Hill v. National Collegiate Athletic Assn. (1994)
7 Cal.4th 1, 37 (Hill).) The impact on the plaintiff’s privacy
rights must be more than “slight or trivial.” (Ibid.)
“Whether a legally recognized privacy interest is present in
a given case is a question of law to be decided by the court. . . .
Whether plaintiff has a reasonable expectation of privacy in the
circumstances and whether defendant’s conduct constitutes a
serious invasion of privacy are mixed questions of law and fact.
If the undisputed material facts show no reasonable expectation
of privacy or an insubstantial impact on privacy interests, the
question of invasion may be adjudicated as a matter of law.”
(Hill, supra, 7 Cal.4th at p. 40, citations omitted.)
Here, defendants provided evidence they had legitimate
safety concerns because of Ms. Griffin’s status as a public figure
and past death threats and stalking. They also presented
evidence their recordings were made exclusively from
Ms. Griffin’s property, only captured sounds that could be heard
from their property, and any video of plaintiffs’ property was
incidental to their interest in securing defendants’ second story
bedroom.
Plaintiffs argue this case presents an issue of first
impression: “Do residents have a reasonable expectation of
privacy concerning constant audio/video surveillance of their
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private, walled backyard?”1 This is hyperbole. Defendants do not
dispute residents have a right to privacy in their home and
backyard. The question here is, did plaintiffs create a material
factual dispute whether defendants’ cameras intruded on their
right to privacy in a highly offensive or serious manner?
Plaintiffs argue defendants’ claimed security interests are
mere pretext, and their real purpose was to surveille plaintiffs,
arguing that defendants did not install cameras until after the
HOA declined to take action against plaintiffs, admitted they
intended to record plaintiffs, and reviewed the footage daily to
find recordings of plaintiffs. Plaintiffs also argued there were
less intrusive means for defendants to protect their security
interests, such as tilting or moving the cameras.
We conclude there is no material dispute regarding the
offensiveness or seriousness of the intrusion. There was no
evidence repositioning the cameras would adequately safeguard
defendants’ security interests, or that those interests were
pretext. Defendants never testified they intended to surveille
plaintiffs; instead, they testified that they sought to document
the impact of plaintiffs’ loud parties on their property. Only a
small portion of the plaintiffs’ backyard could be seen in the
videos, plaintiffs and their guests could barely be seen, if at all,
and the content of their conversations could not be discerned.
1 Plaintiffs rely on many cases interpreting privacy in the
context of government searches and seizures. These authorities
are not useful in deciding the issues presented in this case.
Those cases involve government surveillance, whereas this case
involves a private security system that no party disputes
defendants were entitled to have.
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What few words and phrases could be understood were clearly
spoken at elevated volumes, which plaintiffs could not reasonably
expect to remain private in an outdoor residential setting, with
neighbors nearby. Plaintiffs’ declarations testifying to their
expectation of privacy do not create a material dispute by
contradicting what can be plainly observed from the recordings.
(See, e.g., Scott v. Harris (2007) 550 U.S. 372, 380.)
Even if the Nest cameras enhanced the clarity of the
recorded sounds, and were more sensitive than the human ear,
the content of plaintiffs’ conversations was still barely audible.
Any impact on plaintiffs’ privacy interests was therefore
insubstantial as a matter of law.
2. Constitutional Invasion of Privacy
“The right to privacy in the California Constitution sets
standards similar to the common law tort of intrusion.”
(Hernandez v. Hillsides, Inc. (2009) 47 Cal.4th 272, 287.) Both
causes of action require consideration of the nature of any
intrusion upon reasonable expectations of privacy, and the
offensiveness or seriousness of the intrusion, including any
justification and other relevant interests. (Id. at p. 288.) As
discussed ante, no serious privacy invasion occurred here.
3. Penal Code Section 632
Penal Code section 632, subdivision (a), provides:
“A person who, intentionally and without the consent of all
parties to a confidential communication, uses an electronic
amplifying or recording device to eavesdrop upon or record the
confidential communication, whether the communication is
carried on among the parties in the presence of one another or by
means of a telegraph, telephone, or other device” shall be subject
to certain penalties. Section 637.2 authorizes a private right of
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action for any violation of section 632. Section 632 defines a
confidential communication as “any communication carried on in
circumstances as may reasonably indicate that any party to the
communication desires it to be confined to the parties thereto, but
excludes a communication made in a public gathering or in any
legislative, judicial, executive, or administrative proceeding open
to the public, or in any other circumstance in which the parties to
the communication may reasonably expect that the
communication may be overheard or recorded.” (Id., subd. (c).)
“A conversation is confidential if a party to that conversation has
an objectively reasonable expectation that the conversation is not
being overheard or recorded.” (Flanagan v. Flanagan (2002)
27 Cal.4th 766, 768.)
The few discernable words and phrases recorded by
defendants were spoken at elevated volumes, which plaintiffs
could not reasonably expect to remain private in an outdoor
residential setting, with neighbors nearby.
4. Request for Judicial Notice
Defendants request this court take judicial notice that
Ms. Griffin sold her home in December 2020. Because the grant
deed was not part of the record below, and is irrelevant to
resolution of this appeal, the request is denied.
DISPOSITION
The judgment is affirmed. Respondents are awarded their
costs on appeal.
GRIMES, Acting P. J.
WE CONCUR:
STRATTON, J. WILEY, J.
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