Legal Question in Civil Litigation in California
Hello.
My wife and I have a two yr old daughter and a small dog. We own a condo in Southern California. We live above some tenants that are renting out the first floor condo.
Recently, they have complained about our two yr old running through the house and our dog barking at random times. I should note that in the HOA CC&Rs, there are quiet hours from 10pm to 8am, of which neither sound occurs in that time frame. Our daughter is in bed by 8pm. In recognizing the tenants concerns, my wife and I bought a big area rug to cover our hardwood floor. This action was well received by the tenants and I thought our issue was resolved. Apparently not, since two days later, they invited me down to their unit for a chat about the noise. They proceeded to show me a digital sound recording device. She pushed play and she has some muffled sounds on the device that she claims are our footsteps. I did not say anything about the device, but took careful mental notes about it and looked up California Privacy law 1708.8 paragraph 'b'. It states:
A person is liable for constructive invasion of privacy when
the defendant attempts to capture, in a manner that is offensive to a
reasonable person, any type of visual image, sound recording, or
other physical impression of the plaintiff engaging in a personal or
familial activity under circumstances in which the plaintiff had a
reasonable expectation of privacy, through the use of a visual or
auditory enhancing device, regardless of whether there is a physical
trespass, if this image, sound recording, or other physical
impression could not have been achieved without a trespass unless the
visual or auditory enhancing device was used.
I believe we have a case here. A response or any kind of feedback would be appreciated.
Thank you.
2 Answers from Attorneys
You are looking at the "anti-paparazzi" privacy statute. It doesn't apply to you or your situation and you don't have a case for four reasons: 1) The situation fails to meet the "use of a visual or auditory enhancing device" element. That refers to the use of unidirectional microphones, parabolic sound capture devices, "bug" microphones, etc. to capture sound the recording of which otherwise "could not have been achieved without a trespass unless the . . . device was used." Similarly it applies to telephoto lenses and digital video enhancing technology. All they did was record sound freely audible in their own unit. 2) You fail to meet the "reasonable expectation of privacy" element of the law. One cannot have a reasonable expectation of privacy in noise that travels out of their unit into another unit. The fact that you were not aware that you were making sound that travels into another unit is not the same. You have to have an objective expectation that sound in another unit would be private. That is patently unreasonable. This also ties into the sound enhancement element. You have a reasonable expectation that sound that cannot be picked up without enhancing devices will be private. Sound that can be picked up outside your unit without enhancement cannot be expected to be kept private. 3) Simply recording the sound of footsteps without any invasion of personal or private space is not "offensive to a reasonable person. 4) You have no damges.
I agree with Mr. McCormick. You have no case.
Moreover, if you do not keep the noise down, the tenants beneath you can sue you for nuisance. It is your downstairs neighbors who have the lawsuit, and it is against you!
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