Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Santa Clara County Super. Ct. No. CV059688
Premo, J.
I. INTRODUCTION
Defendant Jorge Aglony appeals from a judgment after jury trial awarding plaintiff Tomica Bedolla damages for invasion of privacy that occurred when he peered through a hole in her master bedroom wall. The jury awarded plaintiff $55,000 for her past emotional distress, $145,000 for future emotional distress, and $75,000 in punitive damages. Defendant contends on appeal that the awards for future emotional distress and punitive damages are excessive and that he was prejudiced by the jury’s consideration of plaintiff’s statutory cause of action for violation of privacy under Civil Code section 1708.8. For the reasons stated below, we will affirm the judgment.
II. FACTUAL AND PROCEDURAL SUMMARY
Plaintiff and defendant were neighbors. Plaintiff was a single mother of three young children when she moved into 1232 Stayner Street in April 2004. Defendant lived next door at 1226 Stayner Street. The two homes were situated a few feet away from each other, side-by-side. The west-facing exterior wall of plaintiff’s master bedroom dressing area sat directly on the property line. A few feet away was the east-facing exterior wall of defendant’s home. The area between these two walls formed defendant’s side yard, which could only be accessed from his side of the property.
In June 2005, when plaintiff was seven and a half months pregnant with her fourth child, she observed light shining through the lower right corner of her dressing room mirror. She called her mother, who came over and helped her get the mirror off the wall. They discovered a hole in the wall behind the mirror and called the police. Officer Mark Clough of the San Jose Police Department responded, and together they examined the mirror more closely. Part of the silver backing had been scratched off from the lower right corner. There was a three inch square hole cut out of the interior drywall directly behind the lower right corner of the mirror. Behind the interior hole was a one foot square hole in the exterior wall, opening onto defendant’s side yard. Plaintiff could see straight through to the side yard. A large piece of linoleum leaned against the exterior side of the wall, partially blocking the view through the hole.
Plaintiff followed Clough’s advice to immediately vacate the premises with her children. Four days later, she returned to get some clothing. Light was not shining through the bottom right corner of the mirror when she entered her bedroom, but soon she noticed it again. The next moment, the phone rang. It was defendant. Plaintiff answered, called defendant a pig, and hung up. He called back. She did not answer. He began to knock on her front door. She called the police and told defendant through the door that they were coming.
The police officers responding to the call inspected the mirror from inside plaintiff’s dressing room. They saw that no light was coming through the bottom right corner of the mirror and lifted it up to investigate. A small metal electrical box had been fitted into the interior hole in the drywall. A piece of particle board or other similar material had been placed over the exterior hole. Plaintiff pushed against the particle board from the inside. It fell out, revealing defendant’s face as he leaned in.
Defendant explained to the officers that he had been fixing a small metal electrical box in the hole in plaintiff’s wall. He permitted them to inspect and photograph his side yard. The hole in plaintiff’s exterior wall had been repaired from the outside with some sort of fresh caulking, which was still damp. There were 400 to 500 feet of coaxial cable leading from defendant’s home into his side yard, laying in a tangled heap on the ground. More coaxial cable, a night vision binocular, video recorders, a tripod, and multiple televisions were observed in defendant’s living room.
Plaintiff sued defendant for invasion of privacy. Her complaint contained two causes of action: the first for common law invasion of privacy, and the second for statutory invasion of privacy under Civil Code section 1708.8. The case was tried before a jury in June 2007.
“(a) A person is liable for physical invasion of privacy when the defendant knowingly enters onto the land of another person without permission or otherwise committed a trespass in order to physically invade the privacy of the plaintiff with the intent to capture any type of . . . physical impression of the plaintiff engaging in a personal or familial activity and the physical invasion occurs in a manner that is offensive to a reasonable person.
Officer Clough testified at trial that during his investigation, defendant told him that he had been in plaintiff’s home many times to do repair work and knew the floor plan. Defendant himself testified that he had been on plaintiff’s roof at least five times while she lived there, but he denied having been in the home in her absence. He admitted purchasing a video surveillance camera over the internet in January 2004. His testimony was that he had never used it before giving it to a friend named Asfour approximately two years later. He also stated that he possessed a binocular with night vision capability at the time of the subject incident. Asfour testified that if the surveillance camera was hooked up to a video screen, the screen would display whatever the camera was focused on. San Jose Police Officer Mark Hawke had examined the mirror and determined that a person looking through the lower right corner of the mirror, where the backing had been removed, could see into plaintiff’s dressing room and bedroom. Plaintiff’s expert, John Casaus, demonstrated for the jury that when a surveillance camera similar to the one defendant owned was placed behind a mirror with its backing removed, in a wall cavity similar to that in plaintiff’s wall, it could successfully capture video images on the other side of the mirror. Mr. Casaus also noted that the bottom edge of the cavity in plaintiff’s interior wall had a slight, curved depression that the camera fitted into and could be rested upon.
Plaintiff told the jury that she felt “[m]ad, scared, embarrassed, humiliated, a lot of things” when she “started going over the things” and realized that defendant might have seen her through her dressing room mirror. She had stood in front of the mirror each day after her shower in what she thought was complete privacy, drying herself, dressing, brushing her teeth, and combing her hair, all in the nude. “I would shower and come out and dress right there.” She was in the final stages of pregnancy when she left the home with her children on the advice of Sergeant Clough and moved in with her mother, where they slept on the living room floor. The home was crowded and stressful. In late July, plaintiff found another home 25 minutes away from her former residence on Stayner Street. She moved there and began driving her children back and forth each day so they would not have to change schools. Her baby was born on August 13.
Plaintiff received counseling for six months after discovering the hole in her dressing room wall. At the time of trial two years later, she was still reliving the experience and thinking about it every day.
The jury returned a special verdict finding that defendant had intentionally invaded plaintiff’s privacy by using the surveillance camera to capture video images of her as she stood before her mirror.
The special verdict form instructed the jury to answer the following questions pertaining to liability:
“1. Did Tomica Bedolla have a reasonable expectation of privacy in front of her mirror and in her bedroom?
“____ Yes ____ No
“If your answer to question 1 is yes, then answer question 2. If you answered no, stop here, answer no further questions, and have the presiding juror sign and date this form.
“2. Did Jorge Aglony intentionally intrude into the places in which you have found Tomica Bedolla had a reasonable expectation of privacy?
“A. Without a hidden surveillance camera:
____ Yes ____ No
“B. With a hidden surveillance camera with the intent of capturing a video image:
____ Yes ____ No
“If you answered ‘no’ to both parts of question 2, stop here, answer no further questions, and have the presiding juror sign and date this form. If your answer to part B of question 2 is yes, answer question 3, and proceed to question 4.
“3. Was there an intentional intrusion by defendant Jorge Aglony into the space between plaintiff Tomica Bedolla’s exterior wall and her dressing room mirror that included an attempt or intent, by Jorge Aglony, to capture a visual image of Tomica Bedolla’s activities in her dressing room or bedroom with a hidden surveillance camera placed behind her mirror?
“___Yes ____ No
“3. [sic] If you answered ‘yes’ to either question 2A or 2B, would defendant Jorge Aglony’s intrusion be highly offensive to a reasonable person?
“___Yes ____ No”
The jury answered “yes” to each of these questions. Plaintiff was awarded compensatory damages of $55,000 for past emotional distress and $145,000 for future emotional distress. The jury also awarded plaintiff punitive damages of $75,000.
Defendant moved for a new trial on the grounds that the evidence was insufficient to support the finding that he had spied on plaintiff and the amount awarded for future emotional distress was excessive. Defendant further contended that the award of punitive damages was excessive and improper. Plaintiff moved ex parte for an order tripling her award of general damages, pursuant to the remedial provisions of Civil Code section 1708.8, subdivision (d). Both motions were heard and denied on July 23, 2007. As to defendant’s motion, the trial court stated: “With regard to the damages, the future economic damages, the Court believes that in a situation where the jurors are being asked to use their common sense to analyze the case based on their own personal experiences in life, an expert is not needed, that’s the definition of an expert is one who gives assistance to the trier of fact for issues that are outside of their experience, and in this case I think the jury clearly was able to have empathy, and to relate on a common sense and practical level with the plaintiff in this case and the award of future damages for emotional distress were not--was not excessive and it will be supported by the Court.” Further, “[w]ith regard to the punitive damage award, the Court believes that the punitive damages are justifiable. The Court knows that no standard which requires the Court to impose a maximum of ten percent of the net worth of the defendant in setting punitive damages, and the Court will decline to use any such standard. The Court believes that the punitive damage award was reasonable.”
III. DISCUSSION
Defendant has not challenged the jury’s compensatory damage award of $55,000 for past emotional distress. His claims on appeal are that (1) the $145,000 award of future emotional distress damages was excessive and unsupported by the evidence; (2) the inclusion of plaintiff’s statutory cause of action on the special verdict form prejudiced the jury; and (3) the $75,000 punitive damage award was excessive.
A. Future Emotional Distress Damages
Defendant contends that the evidence adduced at trial was insufficient to support the award of future emotional distress damages because it was based solely on plaintiff’s own testimony, without support or corroboration from a medical expert witness. Defendant further contends that the amount awarded was excessive because it resulted from the passion or prejudice generated by counsel’s closing argument that characterized plaintiff as a single mother of four. Plaintiff responds that expert testimony is not required on the issue of future damages, and her status as a single mother was a factor that could rightfully be considered by the jury.
1. Sufficiency of the Evidence
Questions of fact are subject to the “substantial evidence” standard of review. (20th Century Ins. Co. v. Garamendi (1994) 8 Cal.4th 216, 271.) The “substantial evidence” standard is deferential. It begins and ends with the determination whether there is any substantial evidence that supports the factual conclusions reached by the jury. (Foreman & Clark Corp. v. Fallon (1971) 3 Cal.3d 875, 881.) In the absence of a contrary showing in the record, all presumptions are to be made in favor of the judgment. (In re Marriage of Bonds (2000) 24 Cal.4th 1, 31.) The appellant must demonstrate that no reasonable inference supporting the challenged ruling can be drawn from the evidence presented. (McRae v. Department of Corrections & Rehabilitation (2006) 142 Cal.App.4th 377, 389.)
To recover for future emotional distress, a plaintiff must prove that his or her mental suffering is reasonably certain to occur in the future. (Civ. Code, § 3283; Bihun v. AT&T Information Systems, Inc. (1993) 13 Cal.App.4th 976, 995.) “While there is no clearly established definition of ‘reasonable certainty,’ evidence of future detriment has been held sufficient based on expert medical opinion which considered the plaintiff’s particular circumstances and the expert’s experience with similar cases.” (Bihun v. AT&T Information Systems, Inc., supra, 13 Cal.App.4th at p. 995.) However, as defendant acknowledges, expert testimony is not required in all cases. It is unnecessary if the injury is such that the jury could conclude, based on all the evidence and relying upon its own experiences and common knowledge, that future emotional distress is reasonably certain to occur. (Mendoza v. Rudolf (1956) 140 Cal.App.2d 633, 636.) Any evidence reasonably tending in an appreciable degree to prove the fact of future detriment is admissible; its sufficiency is for the jury to decide. (Bauman v. San Francisco (1940) 42 Cal.App.2d 144, 163, superceded by statute on another ground as stated in Bonanno v. Central Contra Costa Transit Authority (2003) 30 Cal.4th 139, 150.) Thus, for example, a plaintiff’s testimony that at the time of trial she was still suffering from headaches, nervousness and pain was evidence tending to prove future damages. (Loper v. Morrison (1944) 23 Cal.2d 600, 611.)
From the uncontroverted evidence presented in this case, a jury could reasonably infer that plaintiff would continue to suffer from fear and embarrassment after the trial had concluded. She testified that she had stood naked in front of her dressing room mirror every day, carrying out her most personal activities in what she thought was complete privacy. She suffered from fear, embarrassment and humiliation when she realized defendant had been spying on her. At the time of trial, she was still thinking about these incidents on a daily basis. She had received counseling for a period of six months. Accordingly, the award of future damages was adequately supported by the evidence.
Contrary to defendant’s argument, expert testimony was not required simply because plaintiff’s emotional injuries were subjective. What drives the need for medical testimony is the inability of an average juror to discern future damage-causing potential. “[W]here an injury is subjective and of such a nature that laymen cannot, with reasonable certainty, know whether or not there will be future pain and suffering, expert evidence by men learned in human anatomy must be offered, who can testify either from an examination of the patient, by history of the case, or by hypothetical question, that the plaintiff with reasonabl[e] certainty may be expected to experience future pain as a result of the established injury.” (Oliveira v. Warren (1938) 24 Cal.App.2d 712, 716, italics added.) A desire for privacy when bathing, dressing and grooming is universal. No further explanation was needed in this case for the jury to understand the fear and humiliation that a person might experience upon learning that she has been secretly watched in her own home during her most private moments. Similarly, no juror needs a medical professional to explain why a single mother of young children might continue to suffer fear and distress after a neighbor cut a hole in the wall of her home and spied on her naked body.
Defendant’s reliance on Haskins v. Howard (1960) 181 Cal.App.2d 338 is misplaced. In that case, the appellate court held that expert evidence was not required to establish causation and permanency of the injury (misalignment of the jaw) because the plaintiff’s injury was clearly observable from the witness stand. Although the court stated that expert testimony may be required if an injury is completely subjective, it stressed that the conclusion as to whether such testimony is necessary depends on the nature of the injury, which often determines what kind of proof is required. (Id. at pp. 340-341.) This comports with the general rule that expert testimony is only required when helpful to a layperson’s understanding. (Evid. Code, § 801.) As explained above, there was no need in this case for expert testimony because the nature of the plaintiff’s injury was within the common knowledge and experience of the average juror. There is nothing in the authorities cited by defendant (Bauman v. San Francisco, supra, 42 Cal.App.2d 144; Oliveira v. Warren, supra, 24 Cal.App.2d 712) to contradict this point, or that can be construed to require expert testimony in each and every case involving subjective injury.
2. Amount of the Award
Defendant asserts that the damage award is excessive and should be reversed because it is the result of passion and prejudice inspired by the closing argument of plaintiff’s counsel, who stated: “In all likelihood she’s living her life, she’s gone on, she’s not on Skid Row but it’s not easy. She’s a single woman with four kids now. She’s got to deal with this. And that’s not the kind of cross that anyone should have to carry around in my opinion.”
The amount of damages is a factual question, committed first to the discretion of the jury and next to the discretion of the trial judge on a motion for new trial. (Seffert v. Los Angeles Transit Lines (1961) 56 Cal.2d 498, 506.) On review, the appellate court indulges all presumptions in favor of the decision of the trial court and can interfere only on the ground that the verdict is so large that, at first blush, it shocks the conscience and virtually compels the conclusion that the award is attributable to passion or prejudice on the part of the jury. (Fagerquist v. Western Sun Aviation, Inc. (1987) 191 Cal.App.3d 709, 727-728; Rufo v. Simpson (2001) 86 Cal.App.4th 573, 614-615 (Rufo).) There is no indication in this case that the jury’s award was the result of undue passion or prejudice. Size alone does not compel that conclusion. (DiRosario v. Havens (1987) 196 Cal.App.3d 1224, 1241.) The absence of special damages is likewise not determinative; recovery is not dependent upon a showing of specific loss. (Fairfield v. American Photocopy etc. Co. (1955) 138 Cal.App.2d 82, 88-89 (Fairfield).) Counsel’s mention of plaintiff’s status as a single mother was an isolated comment that was supported by the evidence and relevant to her vulnerability for future emotional distress because she was the sole adult in her home and was responsible for the safety of her children. Therefore, we cannot say that counsel’s comment swayed the jury to award an amount larger than it otherwise would have. The trial court did not find the award excessive when it denied defendant’s motion for a new trial, which is entitled to great weight on appeal. (Rufo, supra,at pp. 614-615.) Finally, it is noted that damages in an invasion of privacy case are difficult to ascertain and cannot be measured by a pecuniary standard. (Fairfield, supra,at p. 88.) The jury’s award is not grossly disproportionate to the facts of the case, and we decline to interfere with it.
3. Special Verdict Form
Defendant next argues that he was prejudiced by the jury’s consideration of plaintiff’s statutory cause of action for invasion of privacy under Civil Code section 1708.8. Specifically, he contends that the wording of the special verdict form, which differentiated between invasions of privacy with and without a surveillance camera, improperly led the jury to believe that the use of a camera was different conduct, meriting a higher award.
There was nothing improper about the special verdict form because the use of a camera does, in fact, merit a higher award. Plaintiff had sued defendant for invasion of privacy under two separate legal theories, common law invasion of privacy and statutory invasion of privacy under Civil Code section 1708.8. Statutory liability is premised upon the intent (in the event of a physical intrusion) or attempt (in the event of a constructive intrusion) to capture a visual image or sound recording. The statute provides for enhanced remedies in subdivision (d), which states that an aggrieved plaintiff may recover treble and punitive damages and the disgorgement of commercial profits. Thus, unlike the common law cause of action, which does not require the use of a video or audio recording device, a statutory violation under Civil Code section 1708.8 may indeed give rise to a higher damage award if a camera is used. Plaintiff’s evidence pertaining to the camera justified an instruction under both her common law and statutory theories of liability.
“A person who commits any act described in subdivision (a), (b) or (c) is liable for up to three times the amount of any general and special damages that are proximately caused by the violation of this section. This person may also be liable for punitive damages, subject to proof according to Section 3294. If the plaintiff proves that the invasion of privacy was committed for a commercial purpose, the defendant shall also be subject to disgorgement to the plaintiff of any proceeds or other consideration obtained as a result of the violation of this section.” (Civ. Code, § 1708.8, subd. (d).)
Defendant’s argument that Civil Code section 1708.8 does not apply to “non-paparazzi” situations is untenable. In the subdivisions pertaining to liability, the statute clearly states that “[a] person” may be liable. (Id., subds. (a), (b).) There is no limiting language as to the type of person or situation. No distinction is made between “paparazzi” and “non-paparazzi.” The only reference to commercial photographers is in subdivision (d), which limits the remedy of disgorgement to those situations where “the invasion of privacy was committed for a commercial purpose.” (Id., subd. (d).) Subdivision (d) deals solely with remedies and is set forth separately from subdivisions (a) and (b), which pertain to liability. Subdivision (f) expressly states that the remedies provided are cumulative and shall not be construed to limit a plaintiff’s other legal or equitable remedies. There is no reason to believe, from the plain language of this statute, that the Legislature intended to restrict liability to tabloid journalists. Use of the phrase “[a] person,” without limitation, indicates an intent to be inclusive, not exclusive. When statutory language is clear and unambiguous, there is no need for construction, and a court should not indulge in it. (DaFonte v. Up-Right, Inc. (1992) 2 Cal.4th 593, 601.)
“Sale, transmission, publication, broadcast, or use of any image or recording of the type, or under the circumstances, described in this section shall not itself constitute a violation of this section, nor shall this section be construed to limit all other rights or remedies of plaintiff in law or equity, including, but not limited to, the publication of private facts.” (Civ. Code, § 1708.8, subd. (f).)
4. Punitive Damages
Defendant contests the $75,000 award of punitive damages on three grounds: (1) the amount of the award is disproportionate to the amount of compensatory damages when the award of future damages is deducted; (2) the amount of the award is disproportionate to his net worth; and (3) the award will destroy him financially and lead to bankruptcy.
The standard for reviewing a punitive damage award is similar to that used in reviewing compensatory damages. A punitive damage award may be reversed as excessive if the entire record, viewed most favorably to the judgment, indicates the award was the result of passion and prejudice. (Stevens v. Owens-Corning Fiberglas Corp. (1996) 49 Cal.App.4th 1645, 1658.) “The essential question for the jury, the trial court, and the appellate courts is whether the amount of the award substantially serves the public interest in deterrence. The California Supreme Court has established three criteria for making that determination: (1) the reprehensibility of the defendant’s misdeeds; (2) the amount of compensatory damages, though there is no fixed ratio for determining whether punitive damages are reasonable in relation to actual damages; and (3) the defendant’s financial condition.” (Ibid.)
(a) Relationship Between Punitive and Compensatory Damages
A $75,000 punitive damage award is not incompatible with $200,000 in compensatory damages. There is no fixed ratio by which to determine the proper proportion between punitive and compensatory damages. (Finney v. Lockhart (1950) 35 Cal.2d 161, 164.) The goal is to punish and deter. (State Farm Mut. Automobile Ins. Co. v. Campbell (2003) 538 U.S. 408, 416 (State Farm).) In cases involving extreme reprehensibility or compensatory damages that are small, hard to detect or difficult to measure, a higher ratio of punitive to compensatory damages may be justified. (See Simon v. San Paolo U.S. Holding Co., Inc. (2005) 35 Cal.4th 1159, 1182.)
Defendant’s suggestion that the amount of future damages should be deducted from the total compensatory damage award is rejected. As stated previously, the award of future damages is supported by sufficient evidence.
Here, there is no need to consider ratios or multipliers because the amount of punitive damages is less than half the compensatory damages. Even if this were not the case, the reprehensibility of defendant’s misconduct and the difficulty in ascertaining plaintiff’s compensatory damages favor the $75,000 award. “ ‘[T]he most important indicium of the reasonableness of a punitive damages award is the degree of reprehensibility of the defendant’s conduct.’ ” (State Farm, supra, 538 U.S. at p. 419, quoting BMW of North America, Inc. v. Gore (1996) 517 U.S. 559, 575.) Defendant’s misconduct was highly reprehensible. No place is more private than a person’s bedroom, and few people are more vulnerable than a pregnant single mother living alone with her young children. His actions were deliberate and calculated. It took significant planning and forethought to cut a hole in plaintiff’s wall, remove the backing from her mirror, and install a surveillance camera. Understandably, her emotional injury remained two years later and was expected to continue. Thus, the reprehensibility of defendant’s conduct was entitled to great weight for purposes of evaluating punitive damages. Compensatory damages were incapable of precise measurement because the sole item of damages was plaintiff’s emotional injury, for which she sought noneconomic (i.e., general) damages only. Therefore, the relationship between punitive and compensatory damages in this case does not suggest passion or prejudice.
(b) Financial Condition
Concerning his financial condition, defendant’s argument is that the punitive damage award is excessive as a matter of law because the amount exceeds 10 percent of his net worth.
Although punitive damage awards are generally not allowed to exceed 10 percent of the defendant’s net worth (Storage Services v. Oosterbaan (1989) 214 Cal.App.3d 498, 515), “case law has not established any specific numerical percentage of net worth as constituting the upper permissible limit for the amount of a punitive damages award.” (Vallbona v. Springer (1996) 43 Cal.App.4th 1525, 1539 [punitive damages approximately 25 percent higher than net worth]; accord, Devlin v. Kearny Mesa AMC/Jeep/Renault, Inc. (1984) 155 Cal.App.3d 381, 388-391 [affirming award of 17.5 percent of net worth].)
The amount of the award is large but not disproportionate to defendant’s ability to pay, which is the determining factor. “Because the important question is whether the punitive damages will have the deterrent effect without being excessive, an award that is reasonable in light of the first two factors, reprehensibility of the defendant’s conduct and injury to the victims, may nevertheless ‘be so disproportionate to the defendant’s ability to pay that the award is excessive’ for that reason alone. [Citation.] ‘[T]he purpose of punitive damages is not served by financially destroying a defendant. The purpose is to deter, not destroy.’ ” (Rufo, supra, 86 Cal.App.4th at p. 620.) “[A]lthough net worth is the most common measure of wealth used in assessing punitive damages, it is not the exclusive measure.” (Id. at p. 621.) A defendant’s future financial prospects are also relevant. (Id. at pp. 621-622.)
At trial, defendant testified that he owned both homes (his own at 1226 Stayner and plaintiff’s former residence at 1232 Stayner, which he bought before trial) and that his net equity in the homes totaled $313,000. He owned three automobiles worth a total of $50,000, and bank accounts worth $20,000. In the most recent tax year prior to trial, he earned between $50,000 and $75,000 in his regular occupation as a soils engineer consultant. Defendant was not a poor man. He had sufficient assets to pay the judgment, and he had future earning potential. A $75,000 punitive damage award would not have resulted in utter financial destruction. Defendant offered no evidence to the contrary. In light of the extreme reprehensibility of his misconduct, the seriousness of the injury, and the fact that he owned the home where the spying took place (no small consideration, given that it was not his primary residence and he had already used it once to spy on a tenant), a $75,000 award did not present an undue hardship. It was reasonably necessary to achieve the goals of punishment and deterrence without being disproportionate to defendant’s ability to pay.
IV. DISPOSITION
The judgment is affirmed.
WE CONCUR: Rushing, P.J., Elia, J.
“(b) A person is liable for constructive invasion of privacy when the defendant attempts to capture, in a manner that is offensive to a reasonable person, any type of visual image, sound recording, or other physical impression of the plaintiff engaging in a personal or familial activity under circumstances in which the plaintiff had a reasonable expectation of privacy, through the use of a visual or auditory enhancing device, regardless of whether there is a physical trespass, if this image, sound recording, or other physical impression could not have been achieved without a trespass unless the visual or auditory enhancing device was used.” (Civ. Code, § 1708.8, subds. (a)-(b).)