What Happens in Your Backyard Doesn’t Always Stay in Your Backyard

by James Kachmar
The IP Law Blog

Loud parties, surveillance cameras, and a neighbor dispute? The Court of Appeal for the Second Appellate District in California was recently faced with these issues in a case involving claims that one neighbor’s use of surveillance cameras violated the other neighbor’s right to privacy. The fact that one of the defendants was comedian, Kathy Griffin, only added to the case’s interest. In the end, the Court sided with Ms. Griffin and her boyfriend in the case: Mezger v. Bick, et al. (decided July 1, 2021).

Ms. Griffin and her boyfriend, Randy Ralph Bick, Jr., moved next door to Sandra and Jeffrey Mezger in July 2016. The Mezgers claimed that their new neighbors began making noise complaints to the HOA about them shortly after moving in. In September 2017, the police visited the Mezgers to advise them that they were investigating another noise complaint and apparently told the Mezgers that their neighbors “had recorded them.” A few days later, the Huffington Post published a portion of a recording of Mr. Mezger apparently angry about one of the noise complaints. Ms. Griffin also apparently used some of the recordings during her acts.

In July 2018, the Mezgers sued their neighbors claiming violation of their rights to privacy under common law and the California Constitution and violation of Penal Code section 632, among other claims. After discovery, Ms. Griffin and Mr. Bick moved for summary judgment as to the above claims. They provided the Court with evidence that they had installed the security cameras for protection as a result of death threats Ms. Griffin had received and that the cameras were entirely on their own property. They further offered evidence that the cameras were positioned to “maximize [Ms. Griffin’s] safety” and were not intended to “spy” on the Mezgers, although one camera apparently captured a portion of the Mezger’s backyard.

Ms. Griffin also submitted evidence that she sometimes used her phone to make short videos documenting the loud party noises that came from the Mezger’s yard. She provided evidence that she was always on her own property when she made these videos and that any recorded sounds “were so loud that they emanated onto [her] property….”

The Mezgers opposed the motions by claiming that the purpose of the surveillance cameras was solely to spy on them to “document” their conduct to substantiate the noise complaints made by Ms. Griffin and Mr. Bick. They further offered evidence that these recordings were made without their consent or knowledge. They also offered a number of recordings that they had obtained during discovery to show the extent of the claimed invasions of their privacy.

In February 2020, the trial court issued a tentative ruling indicating that it would grant the summary judgment motions of Ms. Griffin and Mr. Bick. After hearing oral argument from both sides, the trial court took the matter under submission and on March 2, 2020, issued its ruling granting the summary judgment motions. The Mezgers then filed an application to submit additional evidence, which the trial court granted. They offered further evidence: (1) demonstrating that they did not believe their conversations could be overheard by their neighbors and thus, they had an expectation of privacy in their conversations; and (2) providing expert witness opinion testimony that the voices on the recordings were “amplified” and sounded louder than they actually were. The trial court rejected this additional evidence and reaffirmed its granting of summary judgment as to these claims. The Mezgers then dismissed their remaining claims and appealed the granting of summary judgment.

The appellate court began by recognizing the applicable standards involved with summary judgment motions. It noted that the burden was on the Mezgers to show with admissible evidence “the specific facts showing that a triable issue of material fact exists….” With that, the Court then turned to each of the Mezgers’ claims.

The Court began with the common law invasion of privacy claim. The elements of this claim are “intrusion in to a private place, conversation, or matter, in a manner highly offensive to a reasonable person.” In order to determine whether “offensiveness” exists, a court must look at: “(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 whose privacy is invaded.” The Court found in favor of Ms. Griffin and Mr. Bick as to these issues.

First, the Court found that they had established that they had legitimate safety concerns given Ms. Griffin’s public exposure and past death threats and stalking incidents. The Court was further persuaded that the recordings were made entirely on their property, captured sounds that could be heard from their property, and any video images of the Mezger’s backyard “was incidental to [the defendants’] interest in securing [their] second-story bedroom.”

Next, the Court rejected the Mezgers’ arguments that these “safety concerns” were mere pretext, i.e. that the real purpose of the cameras was to spy on the Mezgers. The Court found that there was no evidence to support a claim of pretext in that there was no evidence that re-positioning the cameras would achieve the same safety interests or that Ms. Griffin and Mr. Mezger intended to spy on their neighbors. The Court also rejected the Mezgers’ attempt to analogize their claims to those involving privacy interests implicated by governmental search and seizures that may violate a person’s Fourth Amendment rights. Finally, the Court found it significant that ordinary conversations that may have taken place in the Mezgers’ backyard “could not be discerned,” only those spoken “at elevated volumes” for which the Mezgers “could not reasonably expect to remain private.”

The Court then turned to the Mezgers’ claim for invasion of privacy under California’s Constitution. The Court recognized that this claim had “standards similar” to the common law claim and thus failed for the same reasons.

The Court concluded by taking up the Mezgers’ Penal Code section 632 claim. This law prohibits a person from “eavesdropping” or recording “a confidential communication” without “the consent of all parties.” The Court noted that a “conversation is confidential if a party to that conversation has an objectively reasonable expectation that the conversation is not being overheard or recorded.” The Court found that this claim failed because, as mentioned above, the only communications that were caught on the cameras “were spoken at elevated volumes” and thus, “could not reasonably [be expected] to remain private in an outdoor residential setting, with neighbors nearby.”

The Mezger case is an illustration of some of the hurdles a plaintiff may face in asserting claims for invasion of privacy, specifically that the communications allegedly intruded upon are in fact confidential or private. On the upside, Ms. Griffin has apparently sold her home so hopefully, this will be the end of this neighborhood dispute.