Petitioner record producer sought a writ of review to challenge an order of respondent superior court (California), which excluded testimony based on notes prepared from tape recordings made in violation of Cal. Penal Code § 632, in a suit that arose from breach of contract brought by real party, radio personality.

California Business Lawyer & Corporate Lawyer, Inc. understands CACI 3903

Overview

Petitioner, record producer, and real party, radio personality, were involved in a breach of contract action. Respondent Superior Court of Los Angeles County entered an order that excluded petitioner’s testimony that had been based in part on tape recordings, which violated Cal. Penal Code § 632. On appeal, the court issued a peremptory writ of mandate, which directed the respondent court to vacate its order excluding the testimony from introduction at trial. The court held that Cal. Penal Code § 632(d) was not violated by using the recorded conversations to refresh petitioner’s recollection, because petitioner’s memory of the conversation was independent of any illegality, and was not so tainted by mere refreshing, so as to render the testimony inadmissible. The court reversed the order and remanded for a determination as to those matters with which petitioner had a present recollection.

Outcome

The court issued a peremptory writ and vacated the order of respondent superior court, which excluded testimony based on illegal tape recordings. The court held that exclusion was improper where petitioner’s testimony was not so tainted from mere refreshing with the materials as to render it inadmissible.