Jeffrey Metzger is the uber-wealthy CEO of KB Homes, and he and his wife Sandra live in the super-exclusive gated community of Bel Air Crest. Their neighbor is noted comedian Kathy Griffin and her boyfriend, Randy Bick.
These neighbors do not like each other. At all. Who's at fault for all of this mess, or what started the war between these two couples, is totally unclear. But what is nonetheless clear is that despite having huge $15 million-plus properties, these individuals absolutely despise their next door neighbors. And they have the resources to make the lives of their opposites as miserable as humanly possible.
Once Kathy Griffin and Randy Bick move in in 2016, they think that the Metzgers throw loud parties and use way too many expletives, so they repeatedly call the police and complain to the HOA board, but to no avail. So the same day the HOA board finds that Ms. Griffin's and Mr. Bick's noise complaints were not substantiated, they decide to install a super-comprehensive "home security" system, which they readily admit "was
installed to document the extent of the noise disturbances
affecting their property." It consists of several Nest surveillance cameras, with microphones, that were installed at various places and that were focused primarily on locations on their own property, but also very-much-not-coincidentally, also pointed at portions of the back yard of their neighbors -- and recorded the sounds coming from that property. As the opinion mentions, "Ms. Griffin instructed her personal
assistant to review the recordings daily for audio of [their neighbors]," and these audio files -- recounted in detail by Justice Grimes -- have saved titles like "Mezger Backyard
Yelling V1 3.16.17.m4a".
Clearly, Ms. Griffin and Mr. Beck have a dual purpose in installing this stuff. Sure, at some level, they want to protect themselves. Because God knows that living in a super-exclusive gated community in Bel Air with neighborhood guards (oh, yeah, and the Beverly Hills Police) isn't enough. But they also want to record whatever sounds come onto their property from their neighbors. Yelling, obscenities, etc. 'Cause "[t]he HOA had told Mr. Bick he and Ms. Griffin
needed to 'document' [their neighbors'] conduct to substantiate their
claims" about excessive noise, and that's exactly what they were going to do.
But the Metzgers ain't poor, and ain't taking this lying down. So they sue. Claiming that Ms. Griffin and Mr. Bick were illegally invading their privacy by recording their conversations and videotaping stuff in their back yard as well as violating Penal Code section 632(a), which prohibits a person from "intentionally and without the consent of all
parties to a confidential communication, us[ing] an electronic
amplifying or recording device to eavesdrop upon or record the
confidential communication" of another person. Both sides get high-priced lawyers, and away they go.
The trial court dismisses the lawsuit, and the Court of Appeal affirms. Justice Grimes reviews the relevant recordings in detail, and explains that most of 'em (1) barely show anything in the Metzgers' backyard at all (though, yeah, there are occasional things there), and (2) are often unintelligible, and simply record undifferentiated yelling and the like (but with occasional phrases and words discernable). Given that context, the Court of Appeal holds, there's nothing illegal about what Ms. Griffin and Mr. Bick are doing. Record away.
Lots of what Justice Grimes says seems right to me. As the opinion describes it, in the relevant files, "[o]nly 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." That does not seem like a super-critical invasion of privacy to me. And, yes, sometimes, you could hear what was said. But as Justice Grimes notes, "[w]hat 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." Sounds right. Even if, as is apparently the case, the Nest cameras and microphones can pick up and record conversations that might be more difficult for a human ear to discern. If, as Justice Grimes says, the only things that you can really understand on the recordings are people yelling, well, then, that's sort of your own fault. Maybe stop yelling, right?
So, on balance, the opinion seems right.
But there's one part of the thing that nonetheless struck me as a bit off. It's a ruling on summary judgment, and Justice Grimes says: "There was no
evidence repositioning the cameras would adequately safeguard
defendants’ security interests, or that those interests were
pretext." But that second part doesn't seem right at all. From reading the opinion, I'm quite confident that the alleged security motivation for installing the cameras was pretext. Particularly since the cameras (1) were only installed (after -- and on the same day -- the HOA board told Ms. Griffin to "document" the alleged excessive noise, (2) for the purpose, as defendants expressly admitted, "to document the extent of the noise disturbances affecting their property," and (3) Ms. Griffin told her assistant to review the audio files daily to find any sounds that came from their neighbors. It's not just that there's a genuine issue of material fact about that: I'm sure that's right. Yes, I'm sure that Ms. Griffin and Mr. Bix wanted to protect themselves. But's the ostensible reason for the cameras, and it indeed served that function. But the real purpose was to record their neighbors. We've got a word for that. "Pretext." That's what it was here. When you do one thing that you're legally allowed to do -- install cameras and microphones to ensure safety -- when your principal motivation is to do a different thing (record your neighbors), that's "pretext". Just like when an officer pulls you over ostensibly because you roll through a stop sign, or speed, or have a broken tail light, but the reason he's really pulling you over is because he thinks you might be transporting drugs, that's "pretext" too. It might (or might not) be permissible. But it's surely pretext.
I think the opinion really stands for the proposition that, pretext or not, it's okay to install security cameras on your property if there are legitimate security concerns and the invasion of your neighbors is as slight as it is here. Period. Pretext or no. Subjective motivations are irrelevant. That's the partially analogous rule on the "police stop" side, after all. Same here.
So it's not that there's no pretext here, or that the case would be different if there were. Not so. It's that you're allowed to do these things.
Even if, quite frankly, it'd be a whole lot better if one of you simply moved (as Ms. Griffin and Mr. Bicks eventually did) or -- better yet -- simply learned to live with one's neighbors peacefully.
But if you've got money to burn and want to fight, okay. I guess that's what you get to do.
Better than shooting at each other, at least.
