Ms Barbara Cortillo’s Potential Trespass Claim

Interoffice Legal Memorandum
To: Associate
From: Carolyn Burrell
Re: Ms Barbara Cortillo’s Potential Trespass Claim
Our client, Ms Barbara Cortillo (hereafter, Ms Cortillo) intends to institute a suit for trespass to property against Ms Debra Gaston (hereafter, Ms Gaston). Ms Cortillo wants to know whether her potential suit has merit. To determine whether Ms Cortillo’s potential claim will succeed, two facts will be taken into consideration. The first fact is that Ms Gaston acquired conditional consent from Ms Cortillo that allowed her to enter Ms Cortillo’s property, the Casa Cortillo. The second fact is that while in Ms Cortillo’s property, Ms Gaston took intimate photos of Senator Alex Madison (hereafter, Senator Madison) and his lover, Cowboy, instead of taking photos of an endangered bird as stipulated under the forget introduction letter that Ms Gaston used to obtain Ms Cortillo’s consent.
Whether Ms Cortillo’s trespass to property claim against Ms Gaston is likely to succeed even though Ms Gaston had Ms. Cortillo’s consent to enter Ms Cortillo’s property?
I. Whether Ms Cortillo’s consent, which was obtained by fraud, is valid under California’s tort laws?
II. Whether Ms Gaston exceeded the scope of Ms Cortillo’s consent when she took intimate photos of the Senator and Cowboy instead of taking photos of an endangered bird as stipulated under her forged introduction letter?
Yes, Ms Cortillo’s trespass to property against Ms Gaston is likely to succeed. Ms Cortillo’s consent, which was obtained by fraud, may affect the success of Ms Cortillo’s claim. However, the fact that Ms Gaston exceeded the scope of Ms Cortillo’s consent is likely to increase the chances of the claim succeeding.
Ms Cortillo owns a fourteen acres property, the Casa Cortillo, located in the foothills on the east of Santa Barbara and adjacent to a public road. On the south of Ms Cortillo’s property, there is a seventeen-acre property called Paradiso whose ownership is uncertain. To access Paradiso, one has to pass through a gated road on a private easement along the eastern boundary of Ms Cortillo’s property.
Ms Gaston is a photojournalist whose job entails taking unauthorized photos of prominent people. Three weeks ago she received a tip that Senator Madison and his lover, Cowboy, were planning to visit Paradiso on July 4. Ms Gaston was motivated to take pictures of Senator Madison and Cowboy because their relationship was an extramarital affair. On July 1, Ms Gaston rented a helicopter to fly her over Paradiso and the surrounding areas so that she could find an ideal place from which she would be able to take clear pictures of Senator Madison and Cowboy. Ms Gaston spotted a clear knoll on the southeast of Ms Cortillo’s property.
On July 3, Ms Gaston visited Ms Cortillo with a forged introduction letter which made it possible for her to acquire Ms Cortillo’s consent to enter her property. The letter stated that the purpose of the entry was to take pictures of an endangered bird that lived on the foothills of Santa Barbara. On July 4, Ms Gaston entered Ms Cortillo’s property and took intimate photos of Senator Madison and Cowboy including several photos showing the two engaging in sexual activity. A week later, the national largest tabloid published the more intimate photos of Senator Madison and Cowboy. Ms Cortillo is extremely upset about this issue. She has approached our law firm because she wants to find out whether a claim of trespass to property against Ms Gaston would be successful.
1. Whether Ms Cortillo’s consent, which was obtained by fraud, is valid under California’s tort laws?
Under the law of tort, trespass to property is a tortious act that a person commits when he or she enters another person’s property without the owner’s consent. There are three elements of trespass to land; intention, entry into the land and absence of the owner’s consent. Trespass to property may also arise if a person exceeds the scope of the owner’s authorization.
In the case of Miller v National Broadcasting Co, the court expounded on the element of unauthorized entry. The plaintiff instituted a suit against the defendant claiming that the defendant had trespassed onto her property and taken photos of her husband’s dying moments without the plaintiff’s consent. Further, the defendant aired the film during its nightly news without the plaintiff’s authorization. The court held that an unauthorized entry into a person’s property without the owner’s consent amounted to trespass, whether or not the intruder acted in good faith.
Relying on Miller v National Broadcasting Co, one may conclude that Ms Gaston did not trespass on Ms Cortillo’s property. On July 3, Ms Cortillo granted Ms Gaston the authority to enter her property. However, it is important to assess the validity of Ms Cortillo’s consent. Ms Gaston used a forged introduction letter from an editor of Nature Magazine to obtain Ms Cortillo’s consent. Ms Gaston convinced Ms Cortillo that she was only entering the property to take photos of an endangered bird. Ms Gaston’s misrepresented a material fact.
In the case of Baugh v CBS, the court stated that under California law, in cases when the owner’s consent is fraudulently induced, the owner cannot institute a claim for trespass. The owner can seek remedy in an action for fraudulent misrepresentation. Relying on the case of Baugh v CBS, the court is likely to find that Ms Cortillo’s consent is valid even though it was fraudulently obtained.
2. Whether Ms Gaston exceeded the scope of Ms Cortillo’s consent when she took intimate photos of the Senator and Cowboy instead of taking photos of an endangered bird as stipulated under her forged introduction letter?
Having established that Ms Cortillo’s consent is valid, the next step is to examine whether Ms Gaston exceeded the scope of Ms Cortillo’s consent. In the case of Bough v CBS, the court expounded on the concept of exceeding the scope of the owner’s consent. The claimant instituted a suit against the defendant claiming that the defendant had trespassed on her property. Ms Baugh had called the Oakland police to report a domestic violence event between her husband and her. While the police were at her house, some members of the Mobile Crisis Intervention team led by Elaine Lopez, came to her house. Ms Baugh granted them permission to enter her house and take videos on the condition that the videos would not be aired on television. A few days later, the video was aired by CBS. After examining the facts of the case, the court held that that the cameramen had not exceeded the scope of Ms Baugh’s consent because while at her property, they adhered to all her instructions. To prove that a person committed trespass by exceeding the scope of the owner’s consent, the owner must show that the person acted contrary to the owner’s conditional consent within the property.
Relying on the case of Baugh v CBS, the court is likely to find that Ms Gaston exceeded the scope of Ms Cortillo’s consent. Ms Cortillo’s consent was a conditional one. She only allowed Ms Gatton to enter her property and take photos of an endangered bird. When Ms Gatton started taking intimate photos of Senator Madison and Cowboy, she exceeded the scope of Ms Cortillo’s consent.
Ms Cortillo’s claim of trespass to property against Ms Gatton is likely to succeed. The court is likely to find Ms Gatton liable for trespass because she exceeded the scope of Ms Cortillo’s consent. Therefore, Ms Cortillo should pursue her claim trespass claim against Ms Gatton.

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