Frio

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), which excludes any evidence “obtained as a result of eavesdropping upon or recording a confidential communication in violation of” section 632.

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…