2012-00137565-CL-OR

William Edward Schafer vs. Marine Erby

Nature of Proceeding: Hearing on Demurrer

Filed By: Reed, Kristina M.

Plaintiffs and Cross-Defendants William Edward Schafer, Jr. and Marilyn Ruth
Schafer’s demurrer to Defendants and Cross-Complaints Bruce Rudulph and Shannon
Walker’s First Amended Cross-Complaint (“FACC”) is overruled.

The Court declines Cross-Defendants’ request to refuse to consider the opposition.
While they argue that the post mark on the envelope received in their counsel’s office
shows that the document was mailed on January 27, rather than January 24 as stated
on the proof of service, Cross-Defendants were able to file a reply fully addressing the
opposition.

This action involves a dispute between adjoining landowners regarding use of an
easement. Cross-Complainants assert causes of action for invasion of privacy and
assault based on allegations that when Bruce Rudulph moved Cross-Defendants’ “No
Parking” signs to Cross-Defendants’ property, William Schafer threatened to hit him
and also threatened to release his pit-bulls from his back yard. Cross-complainants
also allege that Marilyn Schafer trespassed on their property, looked into their
windows, shuffled through their mail, slashed their tires, and turned on their sprinklers.
They also allege that Cross-Defendants have two surveillance cameras which point
directly into their windows and backyard.

First Cause of Action (Invasion of Privacy-Civil Code § 1708.8)

The demurrer is overruled. Pursuant to Civil Code § 1708.8, a person is liable for
physical invasion of privacy when he or she, for example, attempts to capture “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.” (Civil Code §
1708.8(b).)

Cross-Complainants alleged that Cross-Defendants have appeared to be monitoring
their conduct every time they go outside or walk alongside their home. “Many times,
Cross-Complainants, while outside, would see Cross-Defendant Marilyn Schafer
standing on the property line and glaring at them for hours at a time. In furtherance of
this harassing conduct, at some point in time, Cross-Defendants caused to be placed
two surveillance cameras pointed directly at the side of Cross-Complainants’ home.
On information and belief, these cameras point directly into the interior of Cross-
Complainants’ windows and back yard.” (FACC ¶ 9.) These allegations are sufficient.

Contrary to Cross-Defendants’ argument, Cross-Complainants sufficiently alleged that
they used means to take/attempt to take any visual image. Indeed, the specifically
alleged that they pointed two cameras at their home which they are informed and
believe point directly into their windows and back yard. (FACC ¶ 9.) While Cross- Defendants’ argue that because the allegation is on information and belief it is deficient
and a mere conclusion unless there are evidentiary facts supporting such belief, those
facts are in the FACC. Indeed, the FACC sets forth the background of the dispute
between the parties, and the alleged history of Cross-Defendants’ going through Cross
-Complainants’ mail, trespassing in their property and monitoring their conduct.
(FACC ¶¶ 5-10.) These facts provide the necessary foundational support for the
information and belief that the cameras were pointed into Cross-Complainants’
windows and backyard. Whether Cross-Complainants can prove their allegations is
irrelevant. Cross-Defendants’ arguments are factual in nature and entirely
inappropriate for resolution on demurrer.

In addition, the Court rejects the argument that Cross-Complainants failed to allege
any facts that they intended to trespass with the intent to capture video recordings
while Cross-Complainants were engaged in a personal or familial activity. Again, the
arguments here are entirely factual. First as set forth above, Cross-Defendants could
be liable under the statute even if there was no trespass. (Civil Code § 1708.8(b).)
Further the above discussed allegations clearly set forth circumstances from which the
necessary intent to capture video images while Cross-Defendants were engaged in a
personal activity. Again Cross-Defendants are alleged to have pointed surveillance
cameras directly into Cross-Complainants’ windows and backyard. Clearly, Cross-
Complaints alleged facts from which it could be inferred that Cross-Defendants
intentionally sought to use a visual device to monitor them in the privacy of their own
home (e.g., engaging in a personal or familial activity). Further, the suggestion that
Cross-Complainants have no reasonable expectation of privacy in their house or
backyard, or that any surveillance would not be highly offensive to a reasonable
person because the areas might be open to the public merits little discussion and is
rejected. A reasonable person would not expect a neighbor to have cameras pointed
in their house/backyard and the issue of whether the areas are indeed open to the
public is a factual one not appropriately resolved on demurrer. Indeed, the factual
nature of the demurrer is highlighted by Cross-Defendants’ request for judicial notice
submitted for the first time in reply of a grant deed from which they make the
inappropriate factual argument that location of the adjoining homes renders it
improbable that they could have intended the cameras to be placed in such a way as
to violate Cross-Complainants’ privacy.

The demurrer to the first cause of action is overruled. Cross-Complainants sufficiently
alleged a cause of action for violation of Civil Code § 1708.8.

Second Cause of Action (Common Law Invasion of Privacy)

The demurrer is overruled. Cross-Defendants’ arguments are essentially similar to the
arguments set forth in connection with the first cause of action and are rejected for the
same reasons. Cross-Complainants have adequately alleged a cause of action for
invasion of privacy based on their allegations regarding Cross-Defendants’ use of
surveillance cameras.

Cross-Defendants’ argument regarding the front yard area is irrelevant as this cause of
action is specifically based upon the alleged invasion into Cross-Complainants’ home
and backyard. (FACC ¶¶ 21-23.)

Third Cause of Action (Assault) The demurrer is overruled. Cross-Defendants’ argument that Cross-Defendants failed
to facts showing an assault is rejected. Cross-Defendants are correct that “mere
words, however, threatening, will not amount to an assault” and that “apprehension of
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contact is the basis of assault.” (Plotnik v. Meihaus (2012) 208 Cal.App.4 1590, 1604
[involving an appeal from a jury verdict].) However, they are incorrect that Cross-
Complaints have only alleged threatening words. Indeed, they alleged that when
Bruce Rudolph removed signs that William Schafer had placed on Mr. Rudoplh’s
property, Mr. Schafer “flew into a fit of rage” and threatened to hit him with the signs
and to release his pit bulls on Cross-Complainants. In addition, Mr. Schafer “even
went so far as to move towards his back yard to threaten to release the dogs.” (FACC
¶ 28.) Cross-Complainants allege that they reasonably believed that they were about
to be attacked by the dogs. (Id. ¶ 29.) These allegations are sufficient for pleading
purposes to demonstrate that Cross-Complainants reasonably apprehended that Mr.
Schafer was going to use his dogs to attack them. Whether Cross-Complainants can
prove such allegations is irrelevant at this time.

Finally, the demurrer to the FACC on the basis that it is uncertain is overruled.
Demurrers for uncertainty are disfavored and only sustained where the pleading is so
muddled that the defendant cannot reasonably respond. The favored approach is to
clarify theories in the complaint through discovery. (Khoury v. Maly’s of Calif., Inc.
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(1993) 14 Cal.App.4 612, 616.) The FACC in no way meets that standard. Cross-
Defendants pose such questions as “where are these security cameras ‘placed?’” and
“what foundational facts support the contention that the ‘cameras point directly into the
interior of Cross-Complainants’ windows and back yard?” Those questions are simply
ones that are properly answered through discovery, not by way of a demurrer.

The demurrer is overruled in its entirety. No later than February 18, 2014, Cross-
Defendants shall file and serve their answers to the FACC.

The minute order is effective immediately. No formal order pursuant to CRC Rule
3.1312 or other notice is required.