Jonathan Duong sustained an industrial injury to his spine while employed by the Automobile Club of Southern California. The sole issue framed for trial on a discovery dispute was defendant’s request for an order permitting it to provide surveillance videos to medical-legal evaluators, pursuant to Qualified Medical Evaluator Regulation 35(d). Applicant asserted that the films violate his right to privacy and, therefore, are not admissible and should not be provided to the doctors.
An investigator testified that he conducted surveillance of the applicant by following him first along the street and later by entering the driveway to a Mobile Home Park; that he entered and parked in the visitor parking space; that he entered onto the property three times and each time parked in the same location; that he filmed applicant entirely from the car; that there were no signs regarding private property or trespassing that he observed from the street when he entered the driveway; and that he understood that the Mobile Home Park was not applicant’s place of residence. He also filmed him inside an Albertson’s grocery store.The only evidence admitted at trial was a photograph containing an Albertson’s logo and the words, “NO Videotaping, Photography, Audio Taping, anywhere on store premises without prior consent.”
The owner of the Mobile Home Park; testified that that there are two signs at each entrance that read “Invitees and Guests Only. No Trespassing. Violators will be Prosecuted;” that there are also signs that say “Private Property;” that he did not invite the investigator onto the property; that he does not know if anyone else invited the investigator; that he did not give permission to the investigator to film on the property; that he did invite applicant to visit his property; that he is applicant’s adoptive father; that his unit is the fifth mobile home from the street; and that there is guest parking as you enter into the park from the street.
The WCJ excluded the sub-rosa video evidence finding that “the filming was accomplished in a manner that violated the rules of both properties and the surveillance company itself.” In her Report, the WCJ added that ”there is an important policy consideration to be factored in where the evidence is obtained in a manner which violates posted rules and company policies.” The WCAB granted reconsideration and removal and reversed the ruling in the panel decision of Duong v. Automobile Club of Southern California. It issued a new Findings and Order ruling that that the sub-rosa video is admissible and ordering that it may be provided to any medical-legal evaluator or treating physician.
The panel reasoned that applicant did not establish any statutory restriction that prevents defendant’s private investigators from obtaining sub-rosa video in apparent violation of rules posted by private property owners. (Cf. Lab. Code, § 435 (prohibiting employers from making video recordings of employees in limited circumstances); Pen. Code, § 6470) (prohibiting secret videotaping of persons in various stages of undress).)
The WCAB went on to state that “We are not persuaded by the argument that defendant violated Civil Code section 1708.84 (the so-called “anti-paparazzi” statute), where subsection (g) creates an exception for private investigators attempting to capture surveillance video of suspected fraudulent conduct. More importantly, Civil Code section 1708.8 addresses civil tort liability for the invasion of privacy. The proceedings before us do not pertain to civil tort liability but rather the admissibility of evidence before the Appeals Board. Therefore, Civil Code section 1708.8 appears to be inapplicable.” It went on to state that “we do not agree that applicant had a reasonable expectation of privacy” in either the parking lot of the Mobile Home Park or inside of Albertson’s. Generally, there is no reasonable expectation of privacy in settings where activities are conducted in an open and accessible space, within the sight and hearing of the general public or of customers or visitors to that open and accessible space, or in areas of commercial premises that are open to the public.
In this case, the private investigator filmed applicant in the parking area of a Mobile Home Park and inside an Albertson’s grocery store. Applicant did not reside at the Mobile Home Park but was there visiting his adoptive father. There is no evidence that the Mobile Home Park is a gated community, that the general public is excluded by the use of a gate or security, or that the parking area is somehow shielded from view of the street. This is especially true where members of the public can freely drive into the common parking area and where the parking area of the home he was visiting was only five (5) houses from the street. “We find even Jess expectation of privacy at Albertson’s where applicant was filmed in a commercial area open to the public.”