Dihno v. Netflix, Inc., 2025 WL 3280834, B335652 (Cal. Ct.
App. Nov. 25, 2025)
Over a partial dissent, the court of appeals affirms the
rejection of various claims, including CLRA
and FAL claims, against Netflix based on its use of a photo of plaintiffs’
house in an ad for Buying Beverly Hills, one of its reality shows, which
depicts the operations of a real estate firm. “Plaintiffs’ home is on a
ridgeline in the Hollywood Hills. The property is guarded by a private gate and
the home is not visible from any nearby street. The closest publicly accessible
vantage point from which the home can be seen is 1,034 feet away.” The photo
was taken by a nonparty and published on Shutterstock, then licensed for the
ad. The photographer “allegedly took the photo without Dihno’s knowledge or
consent using a drone or other specialized photography equipment. The photo
depicted interior and exterior details of the home not visible from any public
location, including the ‘room layout’ and the entrances and exits. The original
photo allegedly depicted plaintiffs’ silhouettes, but was cropped to remove
them for the ad. As alleged, both Netflix and its ad agency knew that the home
was not associated with or depicted in Buying Beverly Hills.
People allegedly began to visit plaintiffs’ home “on a daily
basis” asking to see it and claiming they learned it was for sale through the
Buying Beverly Hills advertisement, including a woman who demanded to enter,
refused to leave, and was arrested. “Other people attempted to open plaintiffs’
front gate and climb over their fence.” Plaintiffs received calls “more than
once daily” from real estate agents who sought to represent the family in
selling the home. (OMG! Me too!) This caused plaintiffs harm to their mental
health, reputations, and relationships with neighbors. They spent approximately
$20,000 on security measures.
Plaintiffs sued for: (1) invasion of privacy, based on
theories that Netflix intruded upon plaintiffs’ seclusion and portrayed them in
a false light; (2) negligent infliction of emotional distress (NIED); (3)
intentional infliction of emotional distress (IIED); (4) Consumer Legal
Remedies Act (CLRA) violations; and (5) violation of the California False
Advertising Law (FAL).
Invasion of privacy: Right of seclusion: This requires that
a defendant must intentionally intrude into a place, conversation, or matter as
to which the plaintiff has a reasonable expectation of privacy, and the
intrusion must occur in a manner highly offensive to a reasonable person.” The state
constitutional cause of action for invasion of privacy has “largely parallel” elements.
Netflix didn’t do the intruding; the question was whether it
“ratified” the intrusion when it published the ad. “Ratification is the
voluntary election by a person to adopt in some manner as his own an act which
was purportedly done on his behalf by another person, the effect of which, as
to some or all persons, is to treat the act as if originally authorized by him.”
But there were no allegations that the photographer acted on Netflix’s behalf.
Indeed, the photo was on Shutterstock, from which any member of the public
could license the photo, contradicting any argument that the photographer acted
for Netflix. Moreover, “[r]atification can only occur where the person
ratifying has full knowledge of the facts.” Netflix was not alleged to have
knowledge.
What about the people who intruded, allegedly caused by
Netflix? Intentional intrusion doesn’t cover third party intrusions except when
vicarious liability is possible—that is, when the intruders are defendant’s
employees. Although an ad soliciting people to come to another’s home for sex
and providing the address might show an intent for third parties to harass the
plaintiff, that’s not what happened here.
False light: This requires a portrayal that would be “highly
offensive to a reasonable person, and where the defendant knew or acted in
reckless disregard as to the falsity of the publicized matter and the false
light in which the plaintiff would be placed.” “Yet, on its face, the
advertisement depicted a home, not the plaintiffs; and it included no personal
information from which any viewer could identify them.” Even if third party
real estate agents somehow associated them with the show, “the complaint does
not allege, and plaintiffs fail to explain, how association with a television
show involving real estate is highly offensive to a reasonable person. As a
matter of law, we conclude it is not.” Although they alleged that the ad
publicly disclosed the entrances, pathways, and floor layout of their home,
there was no allegation of falsity.
Statutory invasion of privacy: Plaintiffs invoked a
California law providing that any person who enters “the airspace above the
land of another person ... in order to capture any type of visual image ... of
the plaintiff engaging in a private, personal, or familial activity and the
invasion occurs in a manner that is offensive to a reasonable person” is liable
for physical invasion of privacy. But there were no specific factual
allegations that could support this statutory claim with respect to
offensiveness.
CLRA and FAL: No standing. Standing requires economic injury
or damage which “ ‘was the result of, i.e. caused by,’ ” the CLRA or FAL
violation. For causation, plaintiffs must demonstrate that they “ ‘ “actual[ly]
reli[ed]” ’ on the ‘ “allegedly deceptive or misleading statements” ’ and that
it ‘ “was an immediate cause” ’ ” of their injuries. But plaintiffs didn’t
allege reliance, only harm from alleged perceived affiliation with Buying
Beverly Hills.
Plaintiffs argued that reliance was unnecessary because
their CLRA and FAL claims do not sound in fraud, but they obviously were. Plus,
CLRA remedies are available only to a “consumer,” meaning “an individual who
seeks or acquires, by purchase or lease, any goods or services ....” Although
plaintiffs alleged that they purchased goods generally, “we disagree that the
CLRA can be interpreted to permit any person who purchases goods to seek relief
from any entity that publishes misleading advertisements.”
NIED: “[A]s a general matter, there is no duty to act to
protect others from the conduct of third parties.” There were no allegations
that plaintiffs had a special relationship with Netflix, and under the facts
alleged, Netflix did not affirmatively create any peril. The ad didn’t encourage
third parties to visit the home, trespass on the property, or harass the
homeowners. It didn’t even disclose plaintiffs’ address, “nor any street or
landmark from which the home’s location could be feasibly discerned.” Moreover,
the complaint alleged, plaintiffs’ home “is not even located in Beverly Hills,”
meaning that anyone searching for the home in the television show’s namesake
city would be looking in the wrong place.
IIED: Netflix allegedly posted the ad on its own home page
and on other unspecified websites and publications. The complaint didn’t allege
that plaintiffs themselves were Netflix subscribers, nor that they were the
target of any form of the ad, nor that Netflix intended to encourage third
parties to visit.
IIED typically requires conduct directed at the plaintiff, but
there’s an exception “when the defendant is aware, but acts with reckless
disregard of the plaintiff and the probability that [its] conduct will cause
severe emotional distress to that plaintiff.” This exception applies only when
the defendant’s conduct “was done with knowledge of [plaintiffs’] presence and
of a substantial certainty that they would suffer severe emotional injury.” The
complaint didn’t and couldn’t plausibly allege that.
Private nuisance also failed for similar reasons.
A concurrence defended the majority’s reluctance to expand
the intentional tort of intrusion “in a sweeping and unwarranted way”:
In search of a legal theory,
appellants contend they “should have some right under the law to limit
Netflix’s exploitation of their home, life, and privacy.” Appellants’ claim
that Netflix “exploit[ed]” “their home” sounds suspiciously like a proposed right
of publicity for houses. For good reason, there is no such tort.
Given the causal
chain alleged, liability under this new theory would be
breathtaking in its scope. Let’s
say the Los Angeles Times decides to do a piece on “five houses in Los Angeles
that look like they came out of a fairy tale.” You know—with those cute,
curving brown roofs. People read the piece and think, “Wow, I’d like to see
that.” They drive by, or walk by, the houses. Maybe some even knock and ask to
come inside. Let’s say lots of people do that. Let’s say the “publisher” of the
piece is not the Los Angeles Times but an influencer on Instagram who’s
interested in architecture. Can the owners or residents of those homes sue for
intrusion? One can imagine myriad other examples. And—according to
appellants—someone who merely licenses a photograph from a stock footage agency
and publishes it can be socked with a lawsuit as well if people show up to
check out the house in the photo.
Nor were ads without constitutional protection.
Judge Edmon partially dissented, arguing that there should
be an intrusion claim here, relying on the flexibility and expansiveness of the
privacy torts. “[A]t least a few cases have recognized claims for intrusion
where defendants published information about the plaintiffs that caused third
parties to intrude into their private spaces.” Unsurprisingly, these are cases
when harassers published solicitations claiming that women wanted sex and third
parties showed up in reliance on the false claims. But the dissent would
generalize to “defendants’ publication of information that created interest in
the plaintiffs and led to foreseeable physical intrusions by third parties that
significantly disturbed the plaintiffs’ solitude.” That’s not
foreseeability—that’s deception and intent to harass. But the dissent would not
require intent to harm, only intent to intrude. [I’m still not seeing intent to
intrude here.] And it didn’t matter that Netflix didn’t publish an address or
names, because, in a previous case, the ad used the woman’s name but not her
address and the third parties were able to find her address by using the phone
directory. Because “many third parties allegedly were readily able to discover [the
address here], presumably by using widely available Internet or artificial
intelligence tools, “I therefore would leave it to the trier of fact to decide
whether Netflix’s use of the photograph of plaintiffs’ home in its advertising,
even without an accompanying address, was sufficiently offensive to create liability
for intrusion.” And subsequent publication can matter to whether an intrusion
is particularly invasive.
Plaintiffs do not suggest—and I
would not conclude—that simply taking a photograph of the outside of
plaintiffs’ house was an actionable invasion of privacy. But that is not all
plaintiffs allege. They allege that the photograph was broadcast to hundreds of
millions of viewers in connection with a television series about the sale of
upscale real estate to the rich and famous. In an era of obsessive interest in
fancy homes and fancy people—coupled with Internet tools that make it a simple
matter to link an image of a property to an address—I believe a reasonable
trier of fact could, in appropriate circumstances, conclude that Netflix’s
advertisement gave rise to a cause of action for intrusion.
Because this was an ad, there were lesser constitutional
concerns than with other applications of the privacy torts.
As for the anti-drone photography statute, the dissent would
still have rejected the claim, albeit for a different reason: the dissent
accepted the allegations that the drone must have flown too close because it “captured
exterior and interior details of the house that that are not visible from any
public location,” which could be “offensive to a reasonable person” within in
the meaning of the law. Nonetheless, there was no “visual image, sound
recording, or other physical impression of the plaintiff engaging in
a private, personal, or familial activity,” as further required by the
statute.
The dissent would also have found private nuisance properly
alleged.
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