Judge Daniel M. Crowley, Case Number: 24STCV05072, Date: 2024-05-24 Tentative Ruling

Moving Defendant Thomas Sandoval’s demurrer to the Complaint of Plaintiff Rachel Leviss is overruled as to the 1st and 3rd causes of action and sustained as to the 4th cause of action with 20 days leave to amend.

Defendant Thomas Sandoval (“Sandoval”) (“Moving Defendant”) demurs to Plaintiff Rachel Leviss’ (“Leviss”) (“Plaintiff”) complaint (“Complaint”). (Notice of Demurrer, pg. 2.)

Sandoval also moves to strike portions of Plaintiff’s Complaint. (Notice of MTS, pgs. 2-3.)

Plaintiff filed her operative Complaint February 29, 2024, against Sandoval and Non-moving Defendant Ariana Madix (“Madix”) (collectively, “Defendants”) alleging four causes of action: (1) eavesdropping (Pen. Code §§632, 637.2); (2) revenge porn (Civ. Code §1708.85); (3) invasion of privacy; and (4) intentional infliction of emotional distress, arising from Plaintiff’s involvement as a former cast member on “Vanderpump Rules,” a reality television show. (See Complaint.)

Sandoval filed the instant demurrer and motion to strike on April 22, 2024. On May 13, 2024, Plaintiff filed her oppositions. On May 17, 2024, Sandoval filed his replies.

Before filing a demurrer, the demurring party must meet and confer in person, by telephone, or by video conference with the party who filed the pleading to attempt to reach an agreement that would resolve the objections to the pleading and obviate the need for filing the demurrer. (C.C.P. §430.41(a), emphasis added.)

Sandoval’s counsel declares he met and conferred with Plaintiff’s counsel on April 11, 2024, via telephone. (See Decl. of Geragos ¶4.) Sandoval’s counsel declares the parties were unable to resolve their disputes without Court intervention. (See Decl. of Geragos ¶4.) Sandoval’s counsel’s meet and confer declaration is sufficient under C.C.P. §430.41. Therefore, the Court will consider the instant demurrer.

Plaintiff alleges she is a former cast member of “Vanderpump Rules,” (“Series” or “Show”) a reality television show produced by Evolution Media (“Evolution”) and broadcast by Bravo Media (“Bravo”), an asset of NBCUniversal (“NBC”) (collectively, “Bravo”), which premiered in 2013. (Complaint ¶¶1, 13.) Plaintiff alleges the series revolves around the staff at Lisa Vanderpump’s (“Vanderpump”) restaurants in West Hollywood: SUR Restaurant & Lounge, Pump Restaurant, and Tom Tom Restaurant & Bar. (Complaint ¶13.) Plaintiff alleges Vanderpump, a British restauranteur and former “Real Housewives of Beverly Hills” cast member, is the central figure of the series, which focuses on her employees’ drama-filled personal and professional lives. (Complaint ¶13.) Plaintiff alleges the show has aired continuously for over a decade, and its 11th season premiered on January 30, 2024. (Complaint ¶13.)

Plaintiff alleges she was a cast member on “Vanderpump Rules” from 2016 to 2023. (Complaint ¶14.) Plaintiff alleges she made her first appearance on “Vanderpump Rules” as the girlfriend of cast member James Kennedy (“Kennedy”), a DJ prone to violent outbursts and grappling with long-standing substance abuse issues and emotional dysregulation. (Complaint ¶15.) Plaintiff alleges Kennedy would regularly berate Plaintiff, falsely accuse her of cheating, and act in a generally unhinged manner. (Complaint ¶15.) Plaintiff alleges some of this was captured on camera, and some was not. (Complaint ¶15.) Plaintiff alleges she eventually warned Kennedy that she would leave him if he did not stop drinking. (Complaint ¶15.) Plaintiff alleges soon after, she learned Kennedy’s behavior was not solely a function of alcohol abuse. (Complaint ¶15.) Plaintiff alleges at Thanksgiving with her family in Arizona, Kennedy erupted at Plaintiff’s mother and father and kicked her family dog four times in an uncontrollable rage. (Complaint ¶15.)

Plaintiff alleges in 2021, she ended her relationship with Kennedy and broke off their engagement. (Complaint ¶15.) Plaintiff alleges Kennedy’s history of violent and dangerous behavior was well-known by Bravo, Evolution, and the cast. (Complaint ¶15.) Plaintiff alleges Kennedy once physically assaulted then-cast member Kristin Doute on camera; however, the footage never aired. (Complaint ¶15.) Plaintiff alleges Kennedy has not faced any repercussions for his actions, which, at a minimum, would be grounds to fire him, due in part to the intervention of Vanderpump, his ally who has served as his protector. (Complaint ¶15.)

Plaintiff alleges in 2021, after three seasons as a recurring character, Leviss was cast as a lead on the Show. (Complaint ¶16.) Plaintiff alleges at the same time, she was in a vulnerable state due to the breakdown of her engagement with Kennedy, which was catalyzed by Kennedy’s chronic substance abuse, emotional instability, and controlling behavior. (Complaint ¶16.) Plaintiff alleges that while she had previously moderated her alcohol intake because of Kennedy’s heavy drinking, Plaintiff began drinking much more heavily in the aftermath of her breakup with Kennedy. (Complaint ¶16.) Plaintiff alleges production and Sandoval encouraged her to increase her drinking because they believed it would make for better television, and readily provided alcohol for her consumption. (Complaint ¶16.)

Plaintiff alleges that by Season 10 of the Series, Kennedy had resumed drinking again and picked up a new girlfriend weeks after his breakup with Plaintiff. (Complaint ¶17.) Plaintiff alleges all of this caused untold harm to Plaintiff’s mental health, inducing her to drink more and leaving her vulnerable to what followed. (Complaint ¶17.)

Plaintiff alleges she began confiding in Sandoval, a former bartender at Vanderpump’s restaurant, SUR, and a cast member since Season 1 of the Show. (Complaint ¶18.) Plaintiff alleges Sandoval had been in a relationship with another cast member, Madix, since 2014. (Complaint ¶18.)

Plaintiff alleges that she was emotionally raw and affected by alcohol when she began to rely heavily on Sandoval for emotional support. (Complaint ¶19.) Plaintiff alleges that in turn, Sandoval began confiding in her about the dire state of his relationship with Madix, describing it as a business partnership and casting its end as foregone. (Complaint ¶19.) Plaintiff alleges, notwithstanding, Sandoval and Madix had been living together in Valley Village, Los Angeles. (Complaint ¶19.) Plaintiff alleges on or about August 10, 2022, she and Sandoval began sleeping together. (Complaint ¶20.) Plaintiff alleges her affair with Sandoval continued apace as Sandoval’s relationship with Madix further deteriorated. (Complaint ¶20.)

Plaintiff alleges that although her affair with Sandoval was purportedly a secret, it was in fact well known to many cast members and suspected by others. (Complaint ¶21.) Plaintiff alleges she and Sandoval were not particularly discrete. (Complaint ¶21.) Plaintiff alleges on information and belief that Madix knew about the affair as early as Fall 2022. (Complaint ¶21.) Plaintiff alleges in December 2022, Madix scolded Plaintiff and Sandoval for being handsy in public and admonished them to save the story for Season 11 of the Series. (Complaint ¶21.)

Plaintiff alleges at that time, “Vanderpump Rules” was facing an uncertain future. (Complaint ¶22.) Plaintiff alleges interest among the public had waned and the Show’s plot had grown stale. (Complaint ¶22.) Plaintiff alleges Madix was reportedly at risk of being cut from the Show. (Complaint ¶22.) Plaintiff alleges in the absence of a sticky new storyline, there is every reason to believe “Vanderpump Rules” would have been canceled. (Complaint ¶22.) Plaintiff alleges Madix was as aware of these pressures as Sandoval, and both were heavily invested financially and reputationally in the show remaining on the air. (Complaint ¶22.) Plaintiff alleges by extension, if Madix’s and Sandoval’s relationship was already on the rocks and if Sandoval was intent on brazenly carrying out an illicit affair with Plaintiff, then Madix and Sandoval had every incentive to leverage these salacious threads into the storyline “Vanderpump Rules” so desperately needed. (Complaint ¶22.) Plaintiff alleges that is precisely what happened. (Complaint ¶22.)

Plaintiff alleges on or about March 1, 2023, Sandoval was performing with his cover band at Tom Tom, a venue in West Hollywood, when his phone purportedly fell from his pocket and slid, unlocked or otherwise fully accessible, into the crowd. (Complaint ¶23.) Plaintiff alleges Sandoval’s phone was reportedly retrieved by a venue attendee and handed over to Madix, who searched Sandoval’s phone and found sexually explicit videos of Plaintiff. (Complaint ¶23.) Plaintiff alleges on information and belief that the explicit videos were recorded by Sandoval without Plaintiff’s knowledge or consent in or around February 2023. (Complaint ¶24.) Plaintiff alleges the two videos Plaintiff has seen depict Plaintiff in a state of undress and masturbating. (Complaint ¶24.) Plaintiff alleges given Sandoval’s apparent practice of secretly recording their video calls, Plaintiff has every reason to assume there are additional illicit videos and/or photographs of her that she has not yet seen. (Complaint ¶24.)

Plaintiff alleges on information and belief that Madix obtained at least two illicit videos of Plaintiff and distributed them and/or showed them to others without Plaintiff’s knowledge or consent. (Complaint ¶25.) Plaintiff alleges at a minimum, Madix circulated the illicit videos to herself and Plaintiff. (Complaint ¶25.) Plaintiff alleges Madix also immediately informed production about what she had found. (Complaint ¶25.) Plaintiff alleges many other individuals have demonstrated intimate familiarity with the videos’ contents, leading Plaintiff to believe the circle of recipients is wider. (Complaint ¶25.)

Plaintiff alleges on the night of March 1st, she was in New York with another cast member, Scheana Shay (“Shay”), taping the show, “Watch What Happens Live with Andy Cohen.” (Complaint ¶26.) Plaintiff alleges after filming, Plaintiff and Shay were at a bar when Plaintiff received a text from Madix that said, “you are DEAD TO ME[.]” (Complaint ¶26.) Plaintiff alleges alongside the message were the two videos of Plaintiff that Madix had purportedly discovered on Sandoval’s phone. (Complaint ¶26.) Plaintiff alleges she experienced a swirl of emotions in response, including shock and fear. (Complaint ¶26.) Plaintiff alleges she felt shock because she did not know Sandoval had recorded pornographic videos of her, and she felt fear because these videos were now in the hands of someone who hated her and was out for blood. (Complaint ¶26.) Plaintiff alleges she was terrified Madix would leak the videos on the internet. (Complaint ¶26.)

Plaintiff alleges that Shay then violently assaulted Plaintiff in a reaction to the revelation out of shock and anger. (Complaint ¶27.) Plaintiff alleges Shay shoved her into a brick wall, punched her in the face, and threw Plaintiff’s phone into the street. (Complaint ¶27.) Plaintiff alleges Shay’s blow to Plaintiff’s face caused a rupture above her left eyebrow and severe swelling and bruising above her left eye. (Complaint ¶27.) Plaintiff alleges she was told by a treating physician that her busted brow would permanently scar. (Complaint ¶27.) Plaintiff alleges that after, she was shaken and flew home the next day and told her family about what was happening. (Complaint ¶28.)

Plaintiff alleges news of the affair and its aftermath, dubbed “Scandoval,” broke on March 3, 2023, when TMZ first reported on the affair. (Complaint ¶29.) Plaintiff alleges this initial reporting was quickly followed by a torrent of follow-up stories. (Complaint ¶29.) Plaintiff alleges by March 4th, tabloids had already begun reporting on the pornographic videos of Plaintiff, citing unnamed sources. (Complaint ¶29.)

Plaintiff alleges that although filming for Season 10 had already wrapped, Bravo and Evolution had a camera crew ready for filming the following day. (Complaint ¶30.) Plaintiff alleges “Scandoval” captured the public’s attention in a massive way, went completely viral, and injected new life into “Vanderpump Rules.” (Complaint ¶31.) Plaintiff alleges “Scandoval” also caused mayhem in Plaintiff’s life, culminating in months-long in-patient treatment at a mental health facility and her departure from the show. (Complaint ¶31.) Plaintiff alleges Bravo and Evolution, in conjunction with the cast, fomented her unprecedented public skewering and Plaintiff became, without exaggeration, one of the most hated women in America. (Complaint ¶31.)

Plaintiff alleges on March 4, 2023, the day after news of the affair had broken, production directed Plaintiff to film with Sandoval at her Los Angeles apartment. (Complaint ¶32.) Plaintiff alleges that, on camera, she confronted Sandoval for secretly recording pornographic videos of her and storing them unprotected on his phone. (Complaint ¶32.) Plaintiff alleges Sandoval had not only invaded her privacy and breached her trust but had also left her enormously vulnerable to a nightmare scenario of the videos leaking on the internet. (Complaint ¶32.) Plaintiff alleges Sandoval responded to Plaintiff’s fury with cowardice and lies, claiming falsely that he had obtained permission to record her. (Complaint ¶32.) Plaintiff alleges that after Sandoval saw that Plaintiff was having none of it, Sandoval ultimately offered a reluctant admission and a sheepish apology. (Complaint ¶32.)

Plaintiff alleges Sandoval was clearly rattled because after filming ended, Sandoval was erratic, unsettled, and refused to leave Plaintiff’s apartment in spite of her requests. (Complaint ¶33.) Plaintiff alleges she was forced to have her sister and brother-in-law pick her up and drive her to their home. (Complaint ¶33.) Plaintiff alleges that day, she retained an attorney to mitigate the risk of the illicit videos leaking. (Complaint ¶33.) Plaintiff alleges once at her sister’s home, she turned off her phone for two days, hoping the heat would die down. (Complaint ¶33.)

Plaintiff alleges media reports suggest Sandoval was in a panic over the on-camera confrontation with Plaintiff. (Complaint ¶34.) Plaintiff alleges Sandoval was concerned that being accused of recording nonconsensual pornography would “paint him in a negative light.” (Complaint ¶34.) Plaintiff alleges he reportedly threatened to cease all further filming for the show unless he was granted editing rights over the scene. (Complaint ¶34.) Plaintiff alleges Bravo and Evolution shockingly obliged Sandoval’s demand. (Complaint ¶34.) Plaintiff alleges the scene was selectively edited to omit any mention of Sandoval’s illicit recording or Plaintiff’s lack of consent. (Complaint ¶34.) Plaintiff alleges this was part of a pattern and practice of Bravo and Evolution throwing Plaintiff under the bus in favor of Sandoval. (Complaint ¶34.)

Plaintiff alleges on March 7th, her attorneys sent out cease and desist letters to the cast regarding the distribution of the nonconsensual illicit videos. (Complaint ¶35.) Plaintiff alleges the letters promptly leaked. (Complaint ¶35.) Plaintiff alleges she also filed a police report and applied for a temporary restraining order against Shay, the cast member who had assaulted her on March 1st. (Complaint ¶35.) Plaintiff alleges despite initially bragging about having punched Plaintiff, Shay began to adamantly deny it in public. (Complaint ¶36.) Plaintiff alleges Shay accused Plaintiff of lying and abusing the court system. (Complaint ¶36.) Plaintiff alleges Shay’s accusations were in spite of Shay’s own private and televised admissions of guilt and Plaintiff’s visible facial injuries. (Complaint ¶36.)

Plaintiff alleges by March 10th, Plaintiff decided to check herself into a mental health facility. (Complaint ¶37.) Plaintiff alleges Sandoval, for his part, tried to talk her out checking into the mental health facility and begged Plaintiff to participate in the “Vanderpump Rules” reunion. (Complaint ¶37.) Plaintiff alleges she reluctantly agreed to wait on the condition that a mental health professional be on the set of the “Vanderpump Rules” reunion in case things got out of hand, given her fragile mental state and the fury brewing among the cast. (Complaint ¶37.) Plaintiff alleges Bravo agreed, then changed its mind. (Complaint ¶37.) Plaintiff alleges she then requested her publicist and confidante, Juliette Harris (“Harris”), be permitted to attend. (Complaint ¶37.) Plaintiff alleges Bravo agreed, then again changed its mind. (Complaint ¶37.) Plaintiff alleges by that point, the reunion was the next day—too soon for Plaintiff to pull out—and she had no reasonable alternative but to participate. (Complaint ¶37.) Plaintiff alleges she also feared the legal implications of refusing to appear, given the draconian terms of her contract. (Complaint ¶37.) Plaintiff alleges she attended the “Vanderpump Rules” reunion, but without the support she felt she needed, and that Bravo had previously offered to provide. (Complaint ¶37.)

Plaintiff alleges at the same time, press coverage was decidedly against her, and she became an object of scorn and ridicule. (Complaint ¶38.) Plaintiff alleges other “Vanderpump Rules” cast members were vilifying Plaintiff in interviews and waging a public campaign against her on social media. (Complaint ¶38.) Plaintiff alleges the other cast members could not have done so without the blessing of Bravo, which pre-approves all cast media appearances and exercises tight control over public messaging. (Complaint ¶38.) Plaintiff alleges Bravo had clearly decided this feeding frenzy was good for ratings. (Complaint ¶38.) Plaintiff alleges various cast members and Bravo itself also released their own “Scandoval” merchandise to cash in on the explosion of interest, including an “I SURVIVED SCANDOVAL” long-sleeve shirt currently available for sale on Bravo’s website. (Complaint ¶38.)

Plaintiff alleges Bravo deliberately sacrificed her for the sake of its commercial interests from its refusal to allow her the opportunity to tell her side of the story and defend herself, which she repeatedly begged for permission to do. (Complaint ¶39.) Plaintiff alleges that without exception her pleas fell on deaf ears. (Complaint ¶39.) Plaintiff alleges as a result of this asymmetrical coverage, the public was not made aware of the extent to which she was victimized by the ordeal or the toll it was taking on her mental state. (Complaint ¶39.) Plaintiff alleges as the feeding frenzy reached a crescendo, Plaintiff was subjected to a gag order prohibiting her from discussing Sandoval’s gross invasion of her privacy, Madix’s vengeful response, Bravo’s cover-up, or the veracity of her allegations of physical assault against Shay, who was publicly calling her a liar, accusing her of playing the victim, and being falsely backed up by others. (Complaint ¶39.) Plaintiff alleges that while the rest of the cast savaged Plaintiff’s reputation and lied about her in the press, drumming up not only interest in “Vanderpump Rules” but also hatred of Plaintiff, Plaintiff herself was involuntarily silent because she was muzzled by Bravo for the sake of its ratings. (Complaint ¶39.) Plaintiff alleges while all of this may have been good for ratings, it was catastrophic for Plaintiff, who was forced into hiding and subjected to death threats directed at her and her family. (Complaint ¶39.) Plaintiff alleges Sandoval, on the other hand, received a development deal from Bravo for a job well done, along with a pay raise. (Complaint ¶39.)

Plaintiff alleges the “Vanderpump Rules” reunion was a train wreck for Plaintiff. (Complaint ¶40.) Plaintiff alleges Bravo and Andy Cohen (“Cohen”) had full knowledge of Plaintiff’s then-dire mental state and took not steps to mitigate the abuse of Plaintiff, even as Cohen himself expressed concern about Plaintiff’s mental health going into the “Vanderpump Rules” reunion. (Complaint ¶40.) Plaintiff alleges one fellow cast member, Katie Maloney (“Maloney”), had been openly threatening to “light [Plaintiff] on fire”; another, Shay, had violently assaulted her. (Complaint ¶40.) Plaintiff alleges during the reunion itself she was on the receiving end of unrelenting missives: “diabolical, demented, subhuman”; a “poo poo head”; “Fuck yourself with a fucking cheese grater. You fucking suck, you’re disgusting and I wish nothing but the worst fucking shit that could ever happen to a person on you!” (Complaint ¶40.) Plaintiff alleges as she was berated, abused, and dehumanized by the rest of the cast—above all Madix—Plaintiff remained largely silent and stoic in apparent shock. (Complaint ¶40.) Plaintiff alleges that later, Cohen remarked that he “did not know how long [she] would last on set” and chalked up her apparent stoicism to being “really medicated[.]” (Complaint ¶40.) Plaintiff alleges Cohen and Bravo already knew that Plaintiff was indeed medicated, something neither surprising nor remotely funny in light of what was happening to her. (Complaint ¶40.)

Plaintiff alleges shortly after the “Vanderpump Rules” reunion, she checked into a mental health treatment facility and remained there for three months. (Complaint ¶41.) Plaintiff alleges even in treatment, however, she could not escape from the claws of Bravo and Evolution because she was warned repeatedly by them not to breach her confidentiality obligations, which contain no exceptions for medical treatment or therapy. (Complaint ¶41.) Plaintiff alleges as a result she was fearful of facing legal repercussions for her honesty and was forced to walk on eggshells. (Complaint ¶41.) Plaintiff alleges this caused her extreme stress and severely stunted her progress in treatment. (Complaint ¶41.)

Plaintiff alleges that when she checked into treatment, she gave her dog, Graham, to her parents for safekeeping. (Complaint ¶42.) Plaintiff alleges Graham was traumatized by years of abuse at the hands of Kennedy and was not an easy dog to manage. (Complaint ¶42.) Plaintiff alleges after a number of incidents, including one in which Graham bit Plaintiff’s mom down to the bone and caused her permanent nerve damage, keeping Graham became untenable. (Complaint ¶42.) Plaintiff alleges her family handed Graham over to a no-kill rescue organization and requested its discretion, given the intense public scrutiny of Plaintiff. (Complaint ¶42.) Plaintiff alleges instead of re-homing Graham as promised, the rescue organization, knowing full well that Kennedy had a history of animal abuse, contacted Vanderpump, who gave Graham back to Kennedy. (Complaint ¶42.)

Plaintiff alleges all of them, with Bravo’s blessing, then seeded a false and malicious narrative that Plaintiff had tried to get the dog “put down.” (Complaint ¶43.) Plaintiff alleges at around this time, rumors were circulating—also seeded by Bravo and the cast—that Plaintiff was actually on vacation and had faked her hospitalization. (Complaint ¶43.) Plaintiff alleges Bravo refused to publicly acknowledge that Plaintiff was, in fact, in in-patient mental health treatment, presumably for fear such disclosure would undermine the storyline. (Complaint ¶43.) Plaintiff alleges that not only would they not do so; Bravo prohibited Plaintiff (through her publicist) from doing so. (Complaint ¶43.) Plaintiff alleges all of this caused even more public scorn of Plaintiff, further unjustified harm to her reputation, and increased threats to her and her family’s physical safety. (Complaint ¶43.)

Plaintiff alleges Bravo and Evolution wanted Plaintiff to return for Season 11 of the Series. (Complaint ¶44.) Plaintiff alleges it was abundantly clear that Bravo and Evolution completely failed to understand or appreciate the toll “Scandoval” had taken on her. (Complaint ¶44.) Plaintiff alleges they warned her (unironically) that she must return to avoid having her story told by others and reaffirmed her prohibition against speaking to the press on her own terms. (Complaint ¶44.) Plaintiff alleges the depths of Plaintiff’s mistreatment in Season 10 went far beyond what is acceptable even in reality television, and Plaintiff knew that returning to the show meant risking a descent back into the depths of despair from which she had just emerged. (Complaint ¶44.)

Plaintiff alleges in the meantime, everyone else got what they wanted. (Complaint ¶45.) Plaintiff alleges “Vanderpump Rules” remains on the air, continuing to milk the storyline Plaintiff catalyzed. (Complaint ¶45.) Plaintiff alleges Sandoval emerged with significantly higher pay and a development deal with Bravo. (Complaint ¶45.) Plaintiff alleges Madix has become a bona fide darling of pop culture, has a new boyfriend, and is starring on Broadway. (Complaint ¶45.) Plaintiff alleges her future is less rosy, and she brings this suit to vindicate her legal rights if not to restore her sullied reputation. (Complaint ¶46.)

“[A] demurrer tests the legal sufficiency of the allegations in a complaint.” (Lewis v. Safeway, Inc. (2015) 235 Cal.App.4th 385, 388.) A demurrer can be used only to challenge defects that appear on the face of the pleading under attack or from matters outside the pleading that are judicially noticeable. (See Donabedian v. Mercury Insurance Co. (2004) 116 Cal.App.4th 968, 994 [in ruling on a demurrer, a court may not consider declarations, matters not subject to judicial notice, or documents not accepted for the truth of their contents].) For purposes of ruling on a demurrer, all facts pleaded in a complaint are assumed to be true, but the reviewing court does not assume the truth of conclusions of law. (Aubry v. Tri-City Hospital District (1992) 2 Cal.4th 962, 967.)

Sandoval demurs to the 1st, 3rd, and 4th causes of action.[1] Sandoval demurs to the 1st cause of action for eavesdropping on the basis it fails to state facts sufficient to constitute a cause of action because (1) Penal Code §632 does not protect a general right of privacy from unconsented videotaping and only protects sound-based or symbol-based communications; and (2) Plaintiff does not allege any facts showing that the parties’ communications were confidential. (Demurrer, pg. 3; C.C.P. §430.10(e).) Sandoval demurs to the 3rd cause of action for invasion of privacy on the basis it fails to state facts sufficient to constitute a cause of action against him because Plaintiff fails to allege any facts showing an intrusion by Sandoval. (Demurrer, pg. 3; C.C.P. §430.10(e).) Sandoval demurs to the 4th cause of action for intentional infliction of emotional distress on the basis it fails to state facts sufficient to constitute a cause of action because Plaintiff fails to state facts that Sandoval’s conduct was outrageous, done with the requisite intent, or that Plaintiff’s injuries were actually and proximately caused by Sandoval’s conduct. (Demurrer, pg. 4; C.C.P. §430.10(e).) Sandoval also demurs to the 1st, 3rd, and 4th causes of action on the basis they are uncertain. (Demurrer, pgs. 3-4; C.C.P. §430.10(f).)

A cause of action for eavesdropping is included in California’s Invasion of Privacy Act (“CIPA”) (Pen. Code §§630, et. seq.) Any person who is injured by a CIPA violation is permitted to bring a civil action against the person who committed the violation. (Pen. Code §637.2(a); see also Kearney v. Salomon Smith Barney, Inc. (2006) 39 Cal.4th 95, 115-116 [addressing availability of private right of action for Pen. Code §632 violations].)

(a) 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, except a radio . . ..

(b) For the purposes of this section, “person” means an individual, . . . but excludes an individual known by all parties to a confidential communication to be overhearing or recording the communication.

(c) For the purposes of this section, “confidential communication” means 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.

Plaintiff alleges she and Sandoval engaged in numerous private and confidential videoconference communications from 2022 to 2023. (Complaint ¶48.) Plaintiff alleges that unbeknownst to and without her consent, Sandoval surreptitiously recorded their communications. (Complaint ¶48.) Plaintiff alleges she had an objectively reasonable expectation that these communications were private and objectively believed that they were not being recorded. (Complaint ¶48.) Plaintiff alleges at no point prior to the confidential communications was Plaintiff informed that Sandoval was recording their communications; nor did Sandoval obtain Plaintiff’s consent to be recorded. (Complaint ¶48.)

Plaintiff alleges on information and belief that some of the recordings depict her in a state of undress and engaged in sex acts. (Complaint ¶49.)

Plaintiff alleges as a result of Sandoval’s actions as alleged, Plaintiff has been injured, including, without limitation, by having her privacy invaded in violation of Penal Code §§630, 632, 637.1, and the California Constitution. (Complaint ¶50.)

Plaintiff sufficiently alleges a cause of action for eavesdropping against Sandoval. There is a split of authority among California Courts of Appeal as to the scope of Penal Code §632(a). (Compare People v. Drennan (2000) 84 Cal.App.4th 1349, 1355-1357 [holding in Third District Court of Appeal that Pen. Code §632 does not embrace a video recording within the definition of a “communication” under CIPA] with People v. Gibbons (1989) 215 Cal.App.3d 1204, 1209 [holding opposite in Fourth District Court of Appeal]; see also People v. Lyon (2021) 61 Cal.App.5th 237, 246 n.3 [“We need not decide whether we agree with Drennan, because, unlike in Drennan, the video recordings in this case that formed the basis of the section 632 charges captured both words and real time images. (See Drennan, at p. 1352, 101 Cal.Rptr.2d 584 [camera had no audio capabilities]).”].)[2] The Fourth District Court of Appeal held in People v. Gibbons that a surreptitious video recording of sexual encounters using a video camera hidden in a closet constituted a “communication” under CIPA, stating:

“[C]ommunication” as used in [CIPA] is not limited to conversations or oral communications but rather encompasses any communication, regardless of its form, where any party to the communication desires it to be confined to the parties thereto. If the act covers eavesdropping on or recording of a telephone call, it surely covers the nonconsensual recording of the most intimate and private form of communication between two people.

Here, Plaintiff alleges she engaged in numerous private and confidential videoconference communications from 2022 to 2023. (Complaint ¶48.) Plaintiff’s allegation that the communications were confidential must, at the pleading stage, be taken as true. (Aubry, 2 Cal.4th at pg. 967.) Further, it is of no consequence that other individual may have been aware of Plaintiff’s relationship with Sandoval; the alleged sexually explicit video communications at issue are the exclusive subject of Plaintiff’s eavesdropping claim. Plaintiff alleges she had an objectively reasonable expectation that these communications were private and objectively believed that they were not being recorded. (Complaint ¶48.) Plaintiff alleges at no point prior to the confidential communications was Plaintiff informed that Sandoval was recording their communications; nor did Sandoval obtain Plaintiff’s consent to be recorded. (Complaint ¶48.)

Accordingly, Sandoval’s demurrer to Plaintiff’s 1st cause of action for eavesdropping is overruled.

“Seventy years after Warren and Brandeis proposed a right to privacy, Dean William L. Prosser analyzed the case law development of the invasion of privacy tort, distilling four distinct kinds of activities violating the privacy protection and giving rise to tort liability: (1) intrusion into private matters; (2) public disclosure of private facts; (3) publicity placing a person in a false light; and (4) misappropriation of a person’s name or likeness . . .. Prosser’s classification was adopted by the Restatement Second of Torts in sections 652A–652E. California common law has generally followed Prosser’s classification of privacy interests as embodied in the Restatement.” (Hill v. National Collegiate Athletic Assn. (1994) 7 Cal.4th 1, 24.)

“[The tort of intrusion] encompasses unconsented-to physical intrusion into the home, hospital room or other place the privacy of which is legally recognized, as well as unwarranted sensory intrusions such as eavesdropping, wiretapping, and visual or photographic spying.” (Shulman v. Group W Productions, Inc. (1998) 18 Cal.4th 200, 230-231, internal citation omitted.)

“The cause of action . . . has two elements: (1) intrusion into a private place, conversation or matter, (2) in a manner highly offensive to a reasonable person. The first element . . . is not met when the plaintiff has merely been observed, or even photographed or recorded, in a public place. Rather, ‘the plaintiff must show the defendant penetrated some zone of physical or sensory privacy surrounding, or obtained unwanted access to data about, the plaintiff.’” (Sanders v. American Broadcasting Co. (1999) 20 Cal.4th 907, 914-915, internal citations omitted.)

“As to the first element of the common law tort, the defendant must have ‘penetrated some zone of physical or sensory privacy . . . or obtained unwanted access to data’ by electronic or other covert means, in violation of the law or social norms. In either instance, the expectation of privacy must be ‘objectively reasonable.’ In Sanders [supra, at p. 907] . . ., this court linked the reasonableness of privacy expectations to such factors as (1) the identity of the intruder, (2) the extent to which other persons had access to the subject place, and could see or hear the plaintiff, and (3) the means by which the intrusion occurred.” (Hernandez v. Hillsides, Inc. (2009) 47 Cal.4th 272, 286-287.)

“[W]e will assess the parties’ claims . . . under the rubric of both the common law and constitutional tests for establishing a privacy violation. Borrowing certain shorthand language from Hill, supra, 7 Cal.4th 1, which distilled the largely parallel elements of these two causes of action, we consider (1) the nature of any intrusion upon reasonable expectations of privacy, and (2) the offensiveness or seriousness of the intrusion, including any justification and other relevant interests.” (Hernandez, 47 Cal.4th at pg. 288.)

Plaintiff alleges Sandoval invaded Plaintiff’s privacy by, among other things, (a) secretly recording their private communications and (b) capturing sexually explicit footage of Plaintiff without her knowledge or consent in a manner highly offensive to a reasonable person. (Complaint ¶67.) Plaintiff alleges Sandoval knew or should have known that Plaintiff had a reasonable expectation of privacy such that their private conversations would remain private and that she was not being secretly recorded. (Complaint ¶68.) Plaintiff alleges she could not have consented to Sandoval recording sexually explicit footage of her because she did not know he was doing so; the footage was captured during private, intimate communications that Plaintiff had every reason to believe would remain private. (Complaint ¶69.) Plaintiff alleges Sandoval’s invasion of her privacy was offensive and objectionable to Plaintiff and to a reasonable person of ordinary sensibilities. (Complaint ¶70.) Plaintiff alleges as a direct and proximate result of said wrongful conduct by Sandoval, Plaintiff has suffered damages in an amount to be proven at trial. (Complaint ¶75.)

Plaintiff sufficiently alleges a cause of action for intrusion upon seclusion against Sandoval. Plaintiff sufficiently alleges the first prong of the cause of action, that Sandoval penetrated Plaintiff’s zone of sensory privacy surrounding in violation of social norms, based on her allegation that Sandoval “secretly record[ed] their private communications and . . . captur[ed] sexually explicit footage of [Plaintiff] without her knowledge or consent[.]” (Complaint ¶67.) Plaintiff sufficiently alleges the second prong of the cause of action, that the alleged intrusion was in a manner highly offensive to a reasonable person, based on her allegation that she had a reasonable expectation of privacy such that their private conversations would remain private and that she was not being secretly recorded. (Complaint ¶68.)

Accordingly, Sandoval’s demurrer to Plaintiff’s 3rd cause of action for intrusion upon seclusion is overruled.

“A cause of action for intentional infliction of emotional distress exists when there is ‘(1) extreme and outrageous conduct by the defendant with the intention of causing, or reckless disregard of the probability of causing, emotional distress; (2) the plaintiff’s suffering severe or extreme emotional distress; and (3) actual and proximate causation of the emotional distress by the defendant’s outrageous conduct.’ A defendant’s conduct is ‘outrageous’ when it is so ‘extreme as to exceed all bounds of that usually tolerated in a civilized community.’ And the defendant’s conduct must be ‘intended to inflict injury or engaged in with the realization that injury will result.’” (Hughes v. Pair (2009) 46 Cal.4th 1035, 1050-1051.)

“[T]he trial court initially determines whether a defendant’s conduct may reasonably be regarded as so extreme and outrageous as to permit recovery. Where reasonable men can differ, the jury determines whether the conduct has been extreme and outrageous to result in liability. Otherwise stated, the court determines whether severe emotional distress can be found; the jury determines whether on the evidence it has, in fact, existed.” (Plotnik v. Meihaus (2012) 208 Cal.App.4th 1590, 1614.)

“Severe emotional distress [is] emotional distress of such substantial quantity or enduring quality that no reasonable man in a civilized society should be expected to endure it.” (Fletcher v. Western Life Insurance Co. (1970) 10 Cal.App.3d 376, 397.)

“‘The law limits claims of intentional infliction of emotional distress to egregious conduct toward plaintiff proximately caused by defendant.’ The only exception to this rule is that recognized when the defendant is aware, but acts with reckless disregard of, the plaintiff and the probability that his or her conduct will cause severe emotional distress to that plaintiff. Where reckless disregard of the plaintiff’s interests is the theory of recovery, the presence of the plaintiff at the time the outrageous conduct occurs is recognized as the element establishing a higher degree of culpability which, in turn, justifies recovery of greater damages by a broader group of plaintiffs than allowed on a negligent infliction of emotional distress theory.” (Christensen v. Superior Court (1991) 54 Cal.3d 868, 905-906, internal citations omitted.)

Plaintiff alleges in doing the things and acts described herein, Sandoval engaged in extreme and outrageous conduct that transcended the bounds of human decency. (Complaint ¶78.) Plaintiff alleges she has suffered emotional distress as a result of the actions committed by Sandoval herein described, including severe emotional distress, physical manifestations of emotional distress, anxiety, shock, embarrassment, loss of self-esteem, disgrace, humiliation, powerlessness, sleeplessness, and loss of enjoyment of life. (Complaint ¶79.) Plaintiff alleges her severe emotional distress prevents her from performing daily activities and obtaining the full enjoyment of life. (Complaint ¶79.) Plaintiff alleges Sandoval’s acts were at all times extreme and outrageous and intended to cause Plaintiff emotional distress or performed with reckless disregard for the probability of causing such emotional distress. (Complaint ¶80.)

Plaintiff fails to allege her emotional distress was proximately caused by Sandoval’s conduct, or that Sandoval’s conduct, namely the alleged sexually explicit recordings, were made with the intention of inflicting injury to Plaintiff or with the realization that injury would result from the act of recording Plaintiff. (Hughes v. Pair (2009) 46 Cal.4th 1035, 1050-1051.) Further, Plaintiff’s Complaint alleges that the sexually explicit recordings were not disseminated by Sandoval, but rather discovered by Madix when she searched through Sandoval’s phone when it purportedly fell from his pocket during a performance at Tom Tom. (Complaint ¶23.) Further, Plaintiff’s Complaint alleges on information and belief that it was Madix, not Sandoval, who distributed and/or showed the alleged sexually explicit videos to others without Plaintiff’s knowledge or consent. (Complaint ¶25.) While Plaintiff’s Opposition argues Sandoval’s recording and failure to secure the pornographic videos of Plaintiff actually and proximately led to Plaintiff’s emotional distress, Plaintiff’s pleading does not affirmatively make such a factual allegation, and that Sandoval’s recording and failure to secure the pornographic videos were done with the intention of harming Plaintiff or with reckless disregard of the probability of causing harm to Plaintiff. (See Opposition, pg. 9.)

Accordingly, Sandoval’s demurrer to Plaintiff’s 4th cause of action for intentional infliction of emotional distress is sustained with 20 days leave to amend.

A demurrer for uncertainty will be sustained only where the complaint is so bad that defendant cannot reasonably respond—i.e., he or she cannot reasonably determine what issues must be admitted or denied, or what counts or claims are directed against him or her.¿ (Khoury v. Maly’s of California, Inc. (1993) 14 Cal.App.4th 612, 616.)¿

If the complaint contains enough facts to apprise defendant of the issues it is being asked to meet, failure to label each cause of action is not ground for demurrer: “Although inconvenient, annoying and inconsiderate, the lack of labels . . . does not substantially impair [defendant’s] ability to understand the complaint.” (Williams v. Beechnut Nutrition Corp. (1986) 185 Cal.App.3d 135, 139 n.2.)¿

Where a demurrer is made upon this ground, it must distinctly specify exactly how or why the pleading is uncertain, and where such uncertainty appears (by reference to page and line numbers of the complaint).¿ (See Fenton v. Groveland Community Services District (1982) 135 Cal.App.3d 797, 809.)¿

Plaintiff’s pleading is not so bad that Moving Defendant cannot reasonably determine what issues must be admitted or denied, or what counts or claims are directed against them.¿ (Khoury, 14 Cal.App.4th 612, 616.)

Accordingly, Moving Defendant’s demurrer on the basis of uncertainty is overruled.¿

Sandoval’s demurrer to Plaintiff’s 1st and 3rd causes of action in her Complaint are overruled. Sandoval’s demurrer to Plaintiff’s 4th cause of action in her Complaint is sustained with 20 days leave to amend.

In light of the Court’s ruling on Sandoval’s demurrer, Sandoval’s motion to strike is denied as moot.

Hon. Daniel M. Crowley

Judge of the Superior Court

[1] The Court notes Sandoval does not demur to the 2nd cause of action for revenge porn, alleged against Madix.

[2] The Court notes Sandoval’s citation to Drennan is incorrect; Drennan was published in Cal.App.4th, not Cal.App.2d. (See Demurrer, pgs. 4-5.) Relatedly, Plaintiff’s citation to People v. Lyon is incorrect; Lyon was published in Cal.App.5th, not Cal.5th. (See Opposition, pg. 5.) The Court advises both parties to double check their citations before filing their papers with the Court.