Frio v. Superior Court

• Decision Date: 26 August 1988
• Citation: 250 Cal.Rptr. 819,203 Cal.App.3d 1480
• Court: California Court of Appeals Court of Appeals
• Parties: Richard FRIO and Carousel Records, Inc., Petitioners, v. SUPERIOR COURT for the State of California for the County of Los Angeles, Respondent, Donald IERACE, a/k/a Donnie Iris, Belkin Maduri Organization, Inc., Midwest Records, Inc., Carl Maduri and Mike Belkin, Real Parties in Interest. Civ. B033638.

Page 819

250 Cal.Rptr. 819

203 Cal.App.3d 1480

Richard FRIO and Carousel Records, Inc., Petitioners, v. SUPERIOR COURT for the State of California for the County of Los Angeles, Respondent Donald IERACE, a/k/a Donnie Iris, Belkin Maduri Organization, Inc., Midwest Records, Inc., Carl Maduri and Mike Belkin, Real Parties in Interest.

Civ. B033638.

Court of Appeal, Second District, Division 3, California.

Aug. 26, 1988.

As Modified Sept. 22, 1988.

Wehner and Perlman, Charles C. Wehner and Patrick J. Grannan, Los Angeles, for petitioners

No appearance by respondent.

Dern, Mason & Floum, Richard H. Floum and Edward G. Burg, James A. Sedivy, Los Angeles, for real parties in interest.

KLEIN, Presiding Justice.

Petitioners Richard Frio and Carousel Records (Frio) seek writ review of a pretrial order precluding Frio's testimony about the contents of separate telephone conversations between Frio and real parties in interest, Carl Maduri (Maduri), Mike Belkin (Belkin), principals of Belkin Maduri Organization, Inc. (BMO), Donald Ierace, professionally known as Donnie Iris (Iris), (collectively, real parties) and others.

The trial court based its order on Frio's admission he had prepared notes of some telephone conversations from tape recordings made by his telephone answering machine and had reviewed those notes prior to his deposition. Frio's testimony concerning these conversations was excluded by the trial court based upon Penal Code section 632, subdivision (d), ¹ which excludes any evidence "obtained as a result of eavesdropping upon or recording a confidential communication in violation of" section 632. ²

We conclude Frio's testimony relating his present recollection of the contents of telephone conversations with others, even if refreshed by notes prepared in part by reference to tape recordings made in apparent violation of section 632, is not evidence obtained as a result of the illegality. Properly considered, such testimonial evidence is the result of Frio's lawful first-hand participation in the telephone conversations. Therefore, the trial court's order excluding such testimony is excessive and is reversed.

FACTUAL AND PROCEDURAL BACKGROUND

In October, 1980, Frio, an independent record producer, entered into a contract with Iris' management, BMO, whereby Frio, pursuant to a preexisting understanding with MCA, agreed to produce Iris' record albums which then would be marketed to the public through MCA.

This agreement governed the conduct of the parties through the production and marketing of four Iris albums. However, a dispute arose during the pendency of the production of the fifth album which prompted real parties, early in 1984, to sue Frio in an effort to end their relationship. Frio cross-complained, seeking damages arising out of real parties' claimed breach of contract.

During discovery, Frio produced 671 pages of typed, double-spaced notes of his telephone conversations with the parties to the litigation and others, compiled from May 1983 through June 1985. At his deposition in 1987, Frio testified he had prepared notes of all meetings and telephonic conversations pertaining to the Iris contract. These notes were either handwritten or dictated and then typed. After Frio reviewed the notes for accuracy, they were placed in three ring binders.

Frio admitted he had tape recorded "some conversations" with Maduri and possibly had recorded telephone conversations with Irving Azoff, President of MCA, Belkin and Iris by means of his telephone answering machine. Frio then made "notes of the conversations for [his] records." "The phone would ring, the answering machine would pick up, we talked and it would record." "If I was on the phone I would make a note, and if it was taped at the same time then it would reinforce my notes. And if it wasn't taped at the same time I would still have notes."

However, Frio could not tell by reference to his typed notes which conversations had been taped and which had not. Because Frio reused the tapes in the answering machine, no recordings of any of the conversations are now available.

Frio stated in his deposition the reason he began using the tapes to assist in the compilation of notes was because sometime in the spring of 1983 Maduri told him "Belkin was going to attempt to make some sort of an end run.... [A]t first he was going to attempt to make an offer to buy me out of the contract, and if that didn't work he would make an attempt to ace me out of my contract."

Frio recalled that Maduri offered to buy out the contract in April of 1983. This upset Frio because he "had worked with Donnie [Iris] for four L.P.'s, ..., and felt ... Iris was one record away from being the superstar that he deserved to be and--due to my input and input of several other people. I think we should all have benefited from his great success, which was in the offing. That I didn't think it was a good idea for me to sell off my portion of the contract."

Frio admitted he had reviewed his notes "[o]nce for sure, possibly twice" before testifying at his deposition.

Real parties moved to preclude Frio from offering into evidence at trial the contents of the telephone conversations embodied in the 671 pages of notes. The trial court granted the motion based upon the evidentiary sanction of section 632, subdivision (d).

The trial court's minute order granting the motion states, "[t]he record seems clear that Mr. Frio recorded the conversations in question, prepared the memorandum ... from those recordings, and testified either directly from the memorandum or by using it to refresh his recollection in giving testimony. That testimony is thus evidence 'obtained as a result' of the recording."

CONTENTIONS

Frio contends his independent recollection of the telephone conversations is admissible as evidence of the conversations in which he was a participant regardless of whether he used the notes to refresh his recollection.

Frio also asserts the notes prepared from the recordings do not violate section 632 and, finally, even if the trial court's order is affirmed, the notes are admissible for the purpose of impeachment.

DISCUSSION

1. The Privacy Act, section 630, et seq.

In section 630, the Legislature declared, "that advances in science and technology have led to the development of new devices and techniques for the purpose of eavesdropping upon private communications and that the invasion of privacy resulting from the continual and increasing use of such devices and techniques has created a serious threat to the free exercise of personal liberties and cannot be tolerated in a free and civilized society. [p] The Legislature by this chapter intends to protect the right of privacy of the people of this state."

Section 632 replaced former section 653j, which had required the consent of only one party to a conversation before it might be intercepted or recorded, and made it a crime intentionally to eavesdrop upon or record confidential communications without the consent of all parties.

The legislative history of section 632 is replete with references to the Legislature's intent to strengthen then existing law by "prohibiting wiretapping or 'electronic eavesdropping' without the consent of all parties to the communication which is being tapped or overheard." (Analysis of Assembly Bill 860 prepared by Senate Committee on Judiciary for Hearing Date June 15, 1967; Letter from Jesse M. Unruh to Governor Ronald Reagan dated July 31, 1967; Report of the Assembly Committee on Criminal Procedure for the 1967 General Session.) ³

Additionally, in discussing the applicability of section 631 to a defendant "accused of eavesdropping on plaintiff's conversations with his wife," our Supreme Court has noted "the Privacy Act has long been held to prevent one party to a conversation from recording it without the other's consent," citing People v. Wyrick (1978) 77 Cal.App.3d 903, 909, 144 Cal.Rptr. 38, and Forest E. Olson, Inc. v. Superior Court (1976) 63 Cal.App.3d 188, 191, 133 Cal.Rptr. 573. (Ribas v. Clark (1985) 38 Cal.3d 355, 360, 212 Cal.Rptr. 143, 696 P.2d 637.)

Frio does not contend any of the persons with whom he spoke consented to the recordations. Further, assuming arguendo Frio intended to record the conversations and did not merely intend "to activate a tape recorder which subsequently 'by chance' records a confidential communication" (People v. Superior Court (Smith) (1969) 70 Cal.2d 123, 133, 74 Cal.Rptr. 294, 449 P.2d 230), his conduct constitutes prima facie evidence of violations of section 632 if the communications were confidential.

2. Nature of confidential communications.

Section 632, subdivision (c), states a " 'confidential communication' includes any communication carried on in circumstances as may reasonably indicate that any party to the communication desires it to be confined to the parties thereto, but excludes a communication made in a public gathering or in any legislative, judicial, executive or administrative proceeding open to the public, or in any other circumstance in which the parties to the communication may reasonably expect that the communication may be overheard or recorded."

"While one who imparts private information risks the betrayal of his confidence by the other party, a substantial distinction has been recognized between the secondhand repetition of the contents of a conversation and its simultaneous dissemination to an unannounced second auditor, whether that auditor be a person or mechanical devise." (Ribas v. Clark, supra, 38 Cal.3d at pp. 360-361, 212 Cal.Rptr. 143, 696 P.2d 637.)

The test of confidentiality is an objective one defined in terms of reasonableness. ( People v. Wyrick, supra, 77 Cal.App.3d at p. 909, 144 Cal.Rptr. 38.) A communication must be protected if either party reasonably expects the communication to be confined to the parties.

a. Application here.

The record does not reflect an express finding by the trial court...