Background Information
To: Senior Partner
From: Viveka Ferrell
Date: March 14, 2022
Re: Ms. Barbara Cortillo’s Potential Trespass Claim
Barbara Cortillo (Cortillo) our client who is the owner of a 17 acres property Casa Cortillo (Casa) wants to sue tabloid photographer Debra Gaston (Gaston) for trespassing. Gaston faked her identity and obtained permission to take pictures of endangered birds. Instead, she took pictures of senator Alexis Madison (senator) and a man named Cowboy affair on Paradiso a 17-acre property who owner is unknown.
According to the law in California, does Cortillo have a cause to take action against Gaston for trespassing in Cortillo’s property and for unauthorized access and failure to get Cortillo’s consent to take pictures, because Gaston took pictures of the senator’s affair in Paradiso, which is next door, instead of taking pictures of endangered birds?
- She does not, this is because Gaston had come to Casa to obtain Cortillo’s consent to take pictures and to access her property. Even though Gaston offered a fake identity, yet she was able to get Cortillo’s consent to be on Case and take pictures.
- Yes, she did. Gaston had her consent to access her property and take pictures of endangered birds. After she allowed, Gaston however, took pictures of the affair between the senator and Cowboy on Paradiso, which was next to Casa.
In the month of June, Gaston got to know that Senator Alexis Madison was having an extramarital affair which a man named Cowboy. She got to know that both of them planned to meet on July 4th in Paradiso. It is a 17-acre property located in Santa Barbara; however, the owner is unknown. On 1st of July Gaston hired a helicopter to fly over Paradiso, she also located the knoll area which is south edge of Casa which gives the best view of the entire place. Later, on 3rd of July she forged a letter introducing himself as an editor of a nature magazine and went to Casa and reached out to Cortillo to access the photographs of endangered birds found in the foothills of Santa Barbara. Upon reaching Casa on the 4th she headed to the knoll area to take photographs of the senator and Cowboy after a brief interaction with Cortillo. After capturing the sexual moments of the senator and Cowboy he left Casa thanking Cortillo. A few weeks later, the images were published in a tabloid, this made Cortillo very upset and she wanted to sue Gaston for trespassing.
Since Cortillo gave consent to Gaston to take pictures of endangered birds in Casa it cannot be seen as an act of trespassing by unauthorized. Even after forging the introduction letter it can’t be seen as a case of trespassing because she had Cortillo’s consent to take pictures. According to law in California, trespassing is an intentional act through 1) unauthorized access onto the property of another without getting prior consent, Miller v NBC, 187 Cal. App. 3d 1463, 1480–81, 232 Cal.Rptr. 668 (1986), and consent given, no matter how obtained, is not trespass, Baugh v. CBS, Inc., 828 F. Supp. 745, 756 (N.D.Cal. 1993); and 2) by exceeding the scope of consent. However, the scope of consent is exceeded, when there is continued presence on the property of someone else. Refusal to remove property left behind or engaging in different activities which was not mentioned when consent was being taken. Disrupting the owner’s enjoyment of their property, Baugh v CBS, Inc., 828 F. Supp. 745 (N.D. Cal. 1993), and Mangini v Aerojet, 281 Cal. Rptr. 827 (Cal. Ct. App. 1991).
Trespassing Law in California
The case of unauthorized access was decided in the Miller v. NBC, 232 Cal. Rptr. 668 (1986) case. In the case a film crew of the National Broadcasting Company (NBC) was filming a group of paramedics. The paramedics were called for assistance in the Brownie Miller’s (Miller) property to look at her husband who suffered a heart attack. However, the film crew followed the paramedics and without the consent of the Miller’s took footages of their property. This was revealed when the footages were aired on NBC Nightly News. Upon learning about this the Miller’s filed a law suit for trespass and unauthorized access against the NBC film crew known as Miller v. NBC, 187 Cal.App.3d 1463, 1480–81, 232 Cal.Rptr. 668 (1986). The court held the film crew responsible for trespassing by unauthorized access and also held them responsible for not getting consent of the Miller’s before entering their home. Miller v. NBC, 187 Cal.App.3d 1463, 1480–81, 232 Cal.Rptr. 668 (1986)
However, in this case Cortillo was aware of the fact that Gaston would come to Casa to take pictures she had taken prior permission. Which the film crew did not do in the Miller’s case, they just followed the paramedics and continued their shoot.
On the other hand, the Miller’s case is different from the Baugh v CBS, Inc., 828 F. Supp. 745 (N.D. Cal. 1993) case. Here, property owner Yolanda Baugh (Baugh), asked the Columbia Broadcasting System (CBS) film crew (crew) to leave the premises who were following the police called home on domestic violence call after being told so, the Crew left the location. Id. at 752. However, Baugh was informed that the crew was a mobile crisis to help the police, to which she agreed to let them shoot, but she told them that she did not want to be telecasted on TV. The crew assured Baugh that the footages were for the District Attorney’s office. Id. at 752. Soon after the film of the crew about the domestic violence incident at Baugh’s property was aired on a show called Street Stories. Upon this Baugh filed a trespassing case on the crew for unauthorized access. Baugh v CBS, Inc., 828 F. Supp. 745 (N.D. Cal. 1993).
To this the crew mentioned that they did not enter without unauthorized and that they had left the first time when their entry was objected. And the second time when they entered, they had the consent of Baugh hence it was not trespassing. Baugh v CBS, Inc., 828 F. Supp. 745 (N.D. Cal. 1993). Thus, like the Baugh case, our client consented Gaston to take pictures of her property. Thus, from both the cases, Miller v NBC, 232 Cal. Rptr. 668, and Baugh v CBS, Inc., 828 F. Supp. 745, once consent is given there is no trespass. Hence trespass by unauthorized action is not ideal course of action for Cortillo.
The most palpable argument that can be made is the fact that Gaston exceeded the scope of consent by taking pictures of the affairs. Exceeding the scope of consent is when someone has continued presence, if they leave behind anything or refusing of removing property left behind and exchanging in other activities for which they do not have consent for. It also includes disruption of owner’s enjoyment of their property, Baugh v CBS, Inc., 828 F. Supp. 745 (N.D. Cal. 1993), and Mangini v. Aerojet, 281 Cal. Rptr. 827, 837, 230 Cal.App.3d 1125, 1141 (Cal. App. 3 Dist.1991).
In the Mangini v Aerojet, 281 Cal. Rptr. 827 (Cal. Ct. App. 1991), Aerojet- General Corporation (Aerojet), leased 2400 acres of land from the Cavitts’ family estate for ten years. However, they had one condition to keep the land as it was, Aerojet agreed and signed the lease id. at 230. After the lease tenure, Catherine Mangini (Mangini) and Mark Holthouse (Holthouse) purchased the land and after inspection found hazardous waste material left on the land. This was taken to Aerojet and they were asked to clean or pay its removal which they refused to do, id. at 831. On this Mangini and Holthouse filed a trespassing suit for exceeding the scope of consent against Aerojet, Mangini v. Aerojet, 281 Cal.Rptr. 827, 831, 230 Cal.App.3d 1125, 1131–32 (Cal. App. 3 Dist.1991).
The court stated that, “A conditional or restricted consent to enter land creates a privilege to do so only in so far as the condition or restriction is complied with,” Mangini v. Aerojet, 281 Cal.Rptr. 827, 837, 230 Cal.App.3d 1125, 1141 (Cal. App. 3 Dist. 1991). Aerojet was found guilty of exceeding their scope of consent. This is very similar to our case as well, as both Gaston and Aerojet deviated from the parameters set by the owner. This, leaves room for Cortillo to take a viable cause of action against Gaston for trespass by exceeding the scope of consent.
Conclusion
Thus, the information received from Cortillo, trespassing by unauthorized access is not a good course of action. This is because, Gaston had her consent to take the picture regardless how she obtained it. Mangini v Aerojet, 281 Cal. Rptr. 827 (1991). However, exceeding the scope of consent is a matter that can be considered. Because Gaston deflected from the objective on which she gave her consent. She took pictures of the senator and Cowboy’s affair on Paradiso, whereas she was consented to take pictures of the endangered birds. Thus, trespass through exceeding the scope of consent is a good action can be taken in order to proceed with the case.
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