Lo v. Miran CA4/3

Filed 8/21/25 Lo v. Miran CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for

publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication

or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

YUNG-TAI LO et al.,

Cross-defendants and G064654

Appellants,

(Super. Ct. No. 30-2023-

v. 01339745)

ARIA MIRAN, OPINION

Cross-complainant and

Respondent.

Appeal from an order of the Superior Court of Orange County,

Theodore R. Howard, Judge. Affirmed.

Lubin Pham + Caplin, Namson Pham and JC Chimoures for

Cross-defendants and Appellants.

LS Carlson Law, Kirk C. Pearson and Richard B. Canada for

Cross-complainant and Respondent.

* * *

This is a dispute between neighbors initiated by plaintiffs and

cross-defendants Yung-Tai Lo and Che-Jen Liang (collectively, the Los),

against their next-door neighbor, defendant and cross-complainant Aria

Miran, relating to Miran’s operation of allegedly noisy pool and spa

equipment in his backyard too close to the fence line with the Los’ property.

The subject of this appeal is Miran’s cross-complaint against the Los for

invasion of privacy and related claims based on allegations the Los spied on,

videotaped, photographed, and recorded Miran and his family and guests

while they were in the privacy of Miran’s backyard.

Lo moved to strike the cross-complaint under the anti-SLAPP

statute. (Code Civ. Proc., § 425.16.) In the motion, the Los contended the

allegations of the cross-complaint are false and they only created audio

recordings of Miran’s property to capture the sound of the pool equipment to

use in mediation and to make reports to the City of Irvine and the parties’

homeowners association (the HOA). The trial court denied the motion on the

ground the acts that form the basis of the cross-complaint are not protected

activities under the anti-SLAPP law. We affirm.

STATEMENT OF FACTS AND PROCEDURAL HISTORY

The Los filed their complaint against Miran1 for breach of the

covenants, codes and restrictions (CC&Rs) that govern the parties’ properties

and violation of Government Code section 36900 arising from Miran’s alleged

1

Although not at issue in this appeal, the Los also sued the HOA

for breach of fiduciary duty, and declaratory relief.

2

2

violation of certain city ordinances. The Los also asserted claims for

nuisance, negligence, and declaratory relief. The gravamen of the Los’

complaint is that Miran’s pool equipment is excessively noisy and not set

back sufficiently from the parties’ shared wall.

Miran filed a cross-complaint against the Los alleging causes of

action for constructive invasion of privacy (Civ. Code, § 1708.8, subd. (b)),

physical invasion of privacy (id., subd. (a)), invasion of privacy, nuisance, and

breach of equitable servitudes. All claims alleged in the cross-complaint arise

from Miran’s allegations that the Los, who live directly next door to Miran,

have been conducting unauthorized surveillance of Miran and his family

while they are in the privacy of Miran’s backyard.3

In response to the cross-complaint, the Los filed an anti-SLAPP

motion, contending the claims alleged in Miran’s cross-complaint arise from

the Los’ exercise of their free right of petition and Miran cannot demonstrate

his claims have merit. Lo submitted a declaration in support of the motion, in

which he denied the allegations of the cross-complaint and explained the Los’

motivation for making the challenged recordings of Miran’s property.

Specifically, Lo stated they made a series of audio-only recordings of the noise

generated by Miran’s pool equipment for use in mediating the dispute with

2

Government Code section 36900, subdivision (a), creates a

private right of action for violation of a city ordinance.

3

Miran cites multiple criminal cases, including People v. Lovelace

(1981) 116 Cal.App.3d 541, 550, for the proposition that he possesses a

reasonable expectation of privacy while in his backyard.

3

4

Miran and reporting the noise problem to the City of Irvine and the HOA.

Although Lo mentions unspecified photographs “regarding Miran’s home” in

his declaration, he denied taking photographs or making video or audio

recordings of Miran, his family, or guests. Miran opposed the anti-SLAPP

motion.

The trial court denied the Los’ motion. The court found the Los

“failed to meet their burden of establishing that the alleged actions of

videotaping, photographing or otherwise recording the actions of Miran and

his family while they were in their private backyard were in furtherance of

their right of petition or free speech” and “[t]he core conduct underlying

Miran’s privacy claims involve injuries caused by activities outside the

boundaries of conduct to which the anti-SLAPP statute applies.” As to the

declaration submitted by Lo, the trial court concluded the arguments “go to

the merits of the claims asserted by Miran and not to the first prong of the

analysis under [Code of Civil Procedure section] 426.16.”

The Los timely appealed the denial of their motion.

DISCUSSION

“We review de novo the grant or denial of an anti-SLAPP motion.

[Citation.] We exercise independent judgment in determining whether, based

on our own review of the record, the challenged claims arise from protected

activity.” (Park v. Board of Trustees of California State University (2017) 2

Cal.5th 1057, 1067.) “To determine whether a claim arises from protected

activity, courts must ‘consider the elements of the challenged claim and what

actions by the defendant supply those elements and consequently form the

4

Lo states they made a series of recordings of the noise generated

by Miran’s pool and spa equipment prior to and in anticipation of mediation

and made a subsequent audio recording during mediation.

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basis for liability.’ [Citation.] Courts then must evaluate whether the

defendant has shown any of these actions fall within one or more of the four

categories of ‘“act[s]”’ protected by the anti-SLAPP statute.” (Wilson v. Cable

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News Network, Inc. (2019) 7 Cal.5th 871, 884 (Wilson).) “A ‘claim may be

struck only if the speech or petitioning activity itself is the wrong complained

of, and not just evidence of liability or a step leading to some different act for

which liability is asserted.’” (Ibid.) “In making its determination, the court

shall consider the pleadings, and supporting and opposing affidavits stating

the facts upon which the liability or defense is based.” (Code Civ. Proc.,

§ 425.16, subd. (b)(2).) Only if the court finds such a showing has been made

does it need to then determine “whether the plaintiff has demonstrated a

probability of prevailing on the claim.” (Equilon Enterprises v. Consumer

Cause, Inc. (2002) 29 Cal.4th 53, 67.)

The centerpiece of Miran’s cross-complaint is the Los’ alleged

invasion of privacy of Miran, his family, and his guests, while in Miran’s

backyard. An action for invasion of privacy based on the theory of intrusion

into private places, conversations, or matter “has two elements: (1) intrusion

5

Under the anti-SLAPP statute, an “‘act in furtherance of a

person’s right of petition or free speech under the United States or California

Constitution in connection with a public issue’ includes: (1) any written or

oral statement or writing made before a legislative, executive, or judicial

proceeding, or any other official proceeding authorized by law, (2) any written

or oral statement or writing made in connection with an issue under

consideration or review by a legislative, executive, or judicial body, or any

other official proceeding authorized by law, (3) any written or oral statement

or writing made in a place open to the public or a public forum in connection

with an issue of public interest, or (4) any other conduct in furtherance of the

exercise of the constitutional right of petition or the constitutional right of

free speech in connection with a public issue or an issue of public interest.”

(Code Civ. Proc., § 425.16, subd. (e).)

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into a private place, conversation or matter, (2) in a manner highly offensive

to a reasonable person.” (Shulman v. Group W Productions, Inc. (1998) 18

Cal.4th 200, 231.)

The trial court determined—and we agree—that videotaping,

photographing, and spying on someone while they are in an allegedly private

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area is not protected activity under the anti-SLAPP statute. The Los contend

that, in evaluating the first prong of the anti-SLAPP analysis, the court

should not have considered only the allegations of the cross-complaint, but

also should have considered and given weight to the Los’ own version of

events and their asserted motivation for making the recordings of Miran’s

property, all as explained in Lo’s declaration. The Los rely on Wilson, supra,

7 Cal.5th 871, for the proposition the court was required to consider Lo’s

declaration and the Los’ asserted motivation in conducting the alleged

surveillance of Miran, as well as their version of events, in determining

whether their conduct was protected under the anti-SLAPP statute. We

disagree with the Los and conclude the court properly denied the motion.

First, the facts in Wilson are distinguishable. The “primary

question before” the court in Wilson “concern[ed] the [anti-SLAPP] statute’s

application to employment discrimination and retaliation claims.” (Wilson,

6

For this reason, we need not reach the second prong of the anti-

SLAPP analysis, i.e., whether Miran met his burden of showing a probability

of success on the merits of the cross-complaint. At oral argument, counsel for

the Los argued Miran’s pool equipment was being operated illegally and the

Los therefore cannot be liable for invasion of privacy pursuant to Civil Code

section 1708.8, subdivision (l)(2). That section carves out from the scope of

actionable invasion of privacy the photographing or recording of activities

that are “illegal or otherwise criminal activity.” (Civ. Code, § 1708.8, subd.

(l)(2).) The Los’ argument goes to the merits of the lawsuit, i.e., the second

prong of the anti-SLAPP analysis, so we do not decide it.

6

supra, 7 Cal.5th at p. 881.) The case involved claims by a former employee of

a news agency for employment discrimination and retaliation, in which

discriminatory motive is a key element. (Id. at pp. 885–887.) The plaintiff in

that case alleged the news agency took actions against him for unlawful

discriminatory and retaliatory reasons. (Id. at p. 881.) In support of its anti-

SLAPP motion, the news agency contended its decision to fire the plaintiff

was “in furtherance of its right to determine who should speak on its behalf

on matters of public interest.” (Id. at p. 882.) The Supreme Court held “that

for anti-SLAPP purposes discrimination and retaliation claims arise from the

adverse actions allegedly taken, notwithstanding the plaintiff’s allegation

that the actions were taken for an improper purpose.” (Id. at p. 892.) This

analysis would necessarily permit a defendant to introduce evidence showing

their action qualifies as one in furtherance of protected speech or petitioning.

(Id. at pp. 889–891.)

Evidence of the Los’ claimed motivation in making the challenged

recordings does not assist them. The thrust of Miran’s cross-complaint is

invasion of privacy based on the alleged videotaping and photographing of

Miran and his family and guests while in the private area of his backyard.

The Los do not cite any authority, and we are not aware of any, holding

tortious conduct such as invasion of privacy is protected activity under the

anti-SLAPP statute if defendants submit a self-serving declaration stating

their motivation for the alleged tortious conduct was to create evidence for

use in mediation or to report legal violations to third parties. Even in the

context of the press pursuing stories of public importance—clearly protected

conduct—the press is not immune from torts committed in the process. (See

Shulman v. Group W Productions, Inc., supra, 18 Cal.4th at p. 236 [holding

“First Amendment does not immunize the press from liability for torts or

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crimes committed in an effort to gather news” in tort action against reporter

for violating automobile accident victim’s right to privacy to gain a

newsworthy story]; see Nicholson v. McClatchy Newspapers (1986) 177

Cal.App.3d 509, 518 [“‘[t]he publisher of a newspaper has no special

immunity from the application of general laws. He has no special privilege to

invade the rights and liberties of others’”]; see also Wilcox v. Superior Court

(1994) 27 Cal.App.4th 809, 820, overruled on another ground in Equilon

Enterprises v. Consumer Cause, Inc., supra, 29 Cal.4th at p. 68, fn. 5

[distinguishing a protected act of filing a lawsuit against a developer against

the unprotected act of burning down the developer’s office for the purpose of

staging a political protest; in the latter situation, “the defendant’s motion to

strike could be summarily denied without putting the developer to the

burden of establishing the probability of success on the merits”].)

The Los had the burden of making a prima facie showing that

Miran’s cross-complaint against them arises “‘from any act of [the Los] in

furtherance of [the Los’] right of petition or free speech under the United

States or California Constitution in connection with a public issue.’” (Wilcox

v. Superior Court, supra, 27 Cal.App.4th at p. 820.) The Los did not meet

their burden.

8

DISPOSITION

The order is affirmed. Respondent to recover costs on appeal.

GOODING, J.

WE CONCUR:

SANCHEZ, ACTING P. J.

DELANEY, J.

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