Netflix Not Liable for Its Ad Triggering Invasions of Privacy

Monday, December 1, 2025

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Court of Appeal:

Netflix Not Liable for Its Ad Triggering Invasions of Privacy

Majority Says Unauthorized Use of Photo of Home in Promoting Video on Realtor, Causing Third Parties to Come to the Residence, Thinking It Was on the Market, Did Not Render Defendant Responsible for Intrusions

By a MetNews Staff Writer

Netflix faces no liability for invasion of privacy based on using, in an advertisement for a video, the image of the plaintiffs’ home captured with a telephoto lens from a drone without consent of the owners, causing to the residents from droves of persons coming to the house, Div. Three of the Court of Appeal for this district has held, drawing a dissent.

Justice Mark Hanasono authored the unpublished majority opinion, filed Tuesday. Justice Anne H. Egerton joined in it and penned a concurring opinion while Presiding Justice Lee Edmon partially dissented.

Edmon said she agrees with the axing of some causes of action but declared that “the complaint adequately alleges a cause of action for invasion of privacy and alleges facts sufficient to support a claim of nuisance.”

The plaintiffs are Aharon Dihno, another adult male, and two minors who reside in a house in the Hollywood Hills.

Although the home is not in Beverly Hills, Netflix used a photo of it in an ad for a reality show, “Buying Beverly Hills,” dealing with a real estate company. Netflix licensed the photo from Shutterstock.com; it was uploaded by the photographer, Ashwin Rao.

Hanasono rejected the plaintiffs’ contention that Netflix can be held liable in connection with the alleged intrusion by Rao, explaining that “the facts alleged do not support plaintiffs’ claim that Netflix ratified Rao’s conduct” and, moreover, found no merit in the assertion that the defendant, by publishing the photo, is responsible the disruptive effect of persons coming to the property, inferring that it was up for sale.

Allegations of Complaint

The amended complaint alleges (with paragraph numbering omitted):

“The Advertisement depicts the interior and exterior of Mr. Dihno’s home from a vantage point above, or at eye level. Considering that Mr. Dihno’s home is located on a ridgeline, Mr. Dihno’s home is not visible from any other point in the immediate area, and the only possibility to capture the photo used in the Advertisement was through use of a drone. The advertising was published without Mr. Dihno’s knowledge or permission. The advertising makes visible intricate details of Mr. Dihno’s home, including the interior layout, entrances, exits, and a deck which is accessible from the front entry way.”

The pleading goes on to say:

“Beginning in September and continuing through today, after the false Buying Beverly Hills Advertisement was published, Mr. Dihno began having people come to his home. These people come on a daily basis. They rang the doorbell. They asked to see the house. They claimed they learned the house was for sale from the Buying Beverly Hills Advertisement.

“On or about October 2023, a woman approached the front door of Mr. Dihno’s family home. The woman began ringing the doorbell and demanding to enter Mr. Dihno’s family’s home. Mr. Dihno interacted with the woman through the intercom. He informed the woman that she could not enter his home. The woman stated that she learned the home was for sale from the advertising published by Netflix. At the time, Mr. Dihno had his partner and two young children in the house and feared for his and his family’s safety. The woman would not relent and continued to ring the doorbell demanding to enter the home. Mr. Dihno was forced to call the police. The police eventually arrived and arrested the woman, who refused to leave the property without being allowed to enter the house.”

Several other incidents involving intrusions by third parties are recited.

Los Angeles Superior Court Judge Barbara M. Scheper sustained a demurrer to the amended complaint without leave to amend and a judgment of dismissal was entered.

1976 Decision

Arguing for a reversal in connection with the cause of action for invasion of privacy, the appellants cited the July 29, 1976 opinion by Div. Five of this district’s Court of Appeal in Vescovo v. New Way Enterprises, Ltd. Suit was brought against the publisher of the Los Angeles Free Press (no longer in existence) by Norma Jean Vescovo, her husband, and their 14-year-old daughter over a classified ad that read:

“Hot Lips—Deep Throat [¶] Sexy young bored housewife [¶] Norma—”

The name “Norma” was followed by the plaintiffs’ address. The ad had not been placed by or with the consent of Vescovo.

Harassment of the family by third parties ensued.

Div. Five’s 1976 opinion reverses the dismissal of five causes of action brought on behalf of the child and one brought by the parents in connection with the minor’s medical costs, finding that the newspaper caused the third parties’ conduct. It explains that the child “seeks to recover for the physical intrusion by various unsavory characters on her own solitude in her own home” and says that a cause of action is stated.

Appellants’ Contention

Attorneys Joseph E. Thomas, William J. Kolegraff and Grant J. Thomas of the Irvine form of Thomas Whitelaw & Kolegraff argued in the appellant’s opening brief that conduct of Netflix is analogous to that of the Free Press. saying:

“The Vescovo ruling establishes the underpinnings of Dihnos’ theory of liability against Netflix for its course of conduct. Just like Vescovo, the intentional publication of the advertisement which caused many people to approach the Dihnos’ private home….In an important way, the Dihnos’ allegations are stronger than Vescovo. For example, in Vescovo, the publisher only published the advertisement once. Here, Netflix continued to publish with full knowledge of the harm identified in the Dihnos original complaint. Therefore, the advertisement, which led to third parties trespassing the property, creates a cause of action for intrusion into the Dihnos’ seclusion based on the actual trespass and intrusion of those third parties.”

The lawyers added:

“The Dihnos have a reasonable expectation of privacy in their home which is within the zone of privacy. Netflix disregarded requests to remove the photo and continues to use it, causing significant harm to the Dihnos. Netflix’s actions are intentional and carried out with full knowledge of the direct harm caused to the Dihnos. Based on this, the Dihnos properly alleged a claim for intrusion upon seclusion based on the Netflix’s continued course of conduct which resulted in third-party trespassers and invaders of privacy.”

Hanasono’s Opinion

Rejecting that reasoning, Hanasono pointed out that “Vescovo was published nearly 50 years ago, and some 22 years before” Shulman v. Group W Productions, Inc., which he termed “our Supreme Court’s leading case on common law intrusion.” In that 1998 state high court opinion, Justice Kathryn Werdegar, citing the Restatement 2nd of Torts, said that in invasion-of-privacy cases, “[w]e ask first whether defendants ‘intentionally intrude[d], physically or otherwise, upon the solitude or seclusion of another…’…”

Hanasono italicized with word “defendants.” He wrote:

“Aside from Vescovo, plaintiffs have not identified any legal authority supporting that a plaintiff may state a claim for intrusion based on acts perpetrated by third parties unaffiliated with the defendant. It is unclear that this aspect of the Vescovo holding comports with Shulman and its progeny.

“We need not resolve this question, however, because Vescovo is distinguishable. In Vescovo, the defendants published an advertisement that listed the plaintiffs’ address and included salacious language suggesting that one plaintiff wished to engage in sex acts….[I]t appeared to conclude that the intentional intrusion element was adequately alleged because the advertisement included the plaintiffs’ home address, which supported that the defendants intended for third parties to harass the plaintiffs.”

The justice continued:

“Unlike in Vescovo, the advertisement in this case depicted only the exterior of plaintiffs’ house, not their address or any other personal information; and the advertisement did not encourage third parties to visit plaintiffs’ home. And while the complaint alleges that Netflix intentionally published the advertisement with knowledge that it might harm plaintiffs, it does not allege that Netflix intended for third parties to harass plaintiffs. In short, unlike in Vescovo, the complaint in this case does not allege, and the existing factual allegations do not support, that Netflix intended to intrude on plaintiffs’ seclusion, as is required for an intrusion claim.”

Egerton’s Opinion

Egerton said in her concurring opinion:

“I write separately to address appellants’ proposal to expand—in my view, in a sweeping and unwarranted way—the intentional tort of intrusion.”

She contended that “[a]ppellants’ proposed expansion of liability for an intentional tort—they pray for compensatory damages of five million dollars in their privacy count, and for punitive as well as compensatory damages in three other causes of action—is breathtaking in its scope.”

Edmon Partially Dissents

Edmon said:

“While it is true that most intrusion cases concern a defendant’s own physical or aural intrusion into a plaintiffs private space or conversation, at 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.”

She said the first of them came in 1942 in Kerby v. Hal Roach Studios, Inc. Actress/singer Marion Kerby sued after a studio, to promote a movie, “Topper Takes a Trip”—the first sequel to “Topper,” with Constance Bennett reprising her role as a fictional “Marion Kerby”— sent a letter on March 8, 1939, to 1,000 men saying:

“Dearest:

“Don’t breathe it to a soul, but I’m back in Los Angeles and more curious than ever to see you. Remember how I cut up about a year ago? Well, I’m raring to go again, and believe me I’m in the mood for fun.

“Let’s renew our acquaintanceship and I promise you an *209 evening you won’t forget. Meet me in front of Warners Downtown Theatre at 7th and Hill on Thursday. Just look for a girl with a gleam in her eye, a smile on her lips and mischief on her mind!”

It was signed, “Marion Kerby.”

The appeals court, recognizing a cause of action, said:

“Here the plaintiff was, without her consent, plucked from her regular routine of life and thrust before the world, or at least 1,000 of its persons, as the author of a letter not written by her and of a nature to at least cast doubt on her moral character, and this was done in a manner to call down on her a train of highly undesirable consequences. This constituted as strong an invasion of the right of privacy as any of those described in the cases.”

Third-Party Conduct

Edmon observed:

“Significantly, neither Kerby nor Vescovo concerned allegations that the defendants themselves physically intruded into the plaintiffs’ homes or ratified intrusions by third parties.”

She said that “although plaintiffs have not alleged a nuisance claim, I would conclude that the facts alleged in the operative complaint support such a claim” and that there should be a remand so that such a cause of action can be inserted.

The case is Dihno v. Netflix, B335652.

Netflix was represented by Mark R. Yohalem and Madelyn Y. Chen of Wilson Sonsini Goodrich & Rosati; by Jonathan Segal and Rachel R. Goldberg of Davis Wright Tremaine; and by Samantha Lachman.