LOS ANGELES (CN) — A Superior Court Judge on Thursday said she would likely grant Netflix's demurrer in a lawsuit filed over the docu-series, "Buying Beverly Hills," but would also allow the plaintiffs to refile their complaint.
Netflix's show follows real estate agent Mauricio Umansky, husband of Kyle Richards, who was featured on "The Real Housewives of Beverly Hills," and his company, The Agency.
Though the show presents an array of lavish multi-million dollar mansions for sale in the L.A. area, the suit in question centers on a house never featured in the series itself — but rather in a thumbnail image used as a "tile," the square on Netflix's website or app that viewers click on in order to play it.
This thumbnail image featured an aerial photograph of a Hollywood Hills home owned by Aharon Dihno and his partner Fernando Cortez.
In their lawsuit, Dihno and Cortez say that since their house was used in the thumbnail and prominently featured on Netflix's home screen, they have been besieged by prospective buyers and looky-loos.
"These people come on a daily basis," the 38-page complaint states. "They ring the doorbell. They ask to see the house. They claim they learned the house was for sale from the Buying Beverly Hills advertisement."
Dinho and Cortez have demanded at least $128 million in damages for ten different causes of action, including a violation of the Privacy Rights Act and intentional infliction of emotional distress.
The complaint cites more than a dozen examples of people showing up unannounced asking to view the house, some of whom even attempted to climb over the fence for a closer look. One particularly stubborn woman refused to leave when she was denied entry, continuing to ring the doorbell until Dihno called the police.
"The woman continued to ring the doorbell from the point of arrival to the time she was arrested and taken from the house," the lawsuit reads. Dihno, Cortez, and their two three-year-old twin boys were "traumatized by the incident" and "now live in constant fear that people will demand entry, or even force entry, into their home."
The constant attention, according to the suit, has hurt Dihno's business, which he operates from home, and damaged his relationships with his neighbors.
In its demurrer motion, Netflix pointed out that the photograph in question wasn't taken by them, but by Shutterstock, a stock footage website.
"Plaintiffs’ complaint takes Netflix’s routine use of a publicly available stock photo and attempts to turn it into a $128 million litigation by spinning out numerous causes of action ridden with legal flaws and factual holes," the motion states.
Dihno and Cortez have admitted the photo is from Shutterstock, but their lawyers, from the firm Thomas Whitelaw & Kolegraff LLP, pointed out that Shutterstock never obtained the rights to show the home.
"Netflix knows this is an unlicensed photo," attorney Joseph Thomas said in a phone interview. "It’s obviously continuing to create privacy violations at my clients' residence."
At a hearing on Thursday, Superior Court Judge Barbara Scheper wasted no time in telling Thomas exactly what she thought of the complaint.
"This complaint is grossly over-pled," the judge said. "You do not have standing to assert many of these causes of action. You have not established economic loss."
She added: "I just don’t think your complaint is sufficient."
Though the judge stopped short of a ruling final, she said she would more than likely grant Netflix's demurrer, striking every cause of action, but also give the plaintiffs the chance to refile a new complaint.
Netflix also filed a motion to dismiss the lawsuit on anti-SLAPP grounds, a legal tactic used to fight lawsuits that have the effect of chilling free speech or public participation. Thomas rebuffed the argument during Thursday's hearing.
"It's well-established that commercial speech that does nothing but promote a commercial product gains no protection from the anti-SLAPP statute," Thomas said. "It’s false commercial speech."
Netflix attorney Jonathan Segal called Thomas' argument a "red herring," and argued that there was an "exception within the exception" — that is, an exception to the commercial speech exception — that meant the tile was still "statutorily subject to the anti-SLAPP statute."
Judge Scheper was far more skeptical of this motion, and said she was likely to deny it — although she appeared to become agitated at Thomas's long-windedness warned him at one point, "You’re going to talk yourself into a change of ruling."
After the hearing, Thomas said in a phone interview that his clients will "definitely" refile their complaint.
"Absolutely, we have a good case here," he said. "And now the SLAPP issue is behind us."
He also expressed dismay that Netflix is continuing to use his clients' home in the thumbnail tile for "Buying Beverly Hills."
"The willfulness about this is just extraordinary," Thomas said.
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