A woman sued her X for domestic violence, stalking, assault, emotional distress stating that after they ended their romantic relationship, the guy shot arrows and discharged a firearm through her office window. In a separate criminal case, the guy pled guilty to stalking.

The parties had met at work and subsequetly started a romantic relationship that ended in 2013. In 2015, crossbow arrows were shot through the windows of the woman’s office building. She then installed surveillance video cameras on the building. In 2017, another shooting cracked a window of her office building but with a different weapon. She viewed the footage and saw someone in a red Jeep fire a gunshot. A few days later, there was another shooting at her building. She viewed the footage and saw the same Jeep circling her office and was able to identify her X shooting a crossbow.

During the trial, the X admitted to shooting a crossbow at the building window once but denied any involvement in the other shootings. The jury awarded $1.3 million to the woman in compensatory damages and additionally found by “clear and convincing evidence” that the X had engaged in conduct with “malice, oppression, or fraud,” and awarded an additional $6000 in punitive damages. She also received $869,689 in attorney fees and $60,565 in litigation cost. In total, she was awarded over $2.2 million dollars.

Issues on Appeal: Audio clips of telephone calls and video clips of the surveillance footage. Judgement of the trial court was affirmed.

1. Telephone recording: X said (1) he had not consented to the recording, (2) they were for the purpose of negotiating a settlement, thus, inadmissible under 1152 of Evidence Code and (3) it was made after his arrrest, thus, violation of his right to counsel.

The court held that it was perfectly proper for the audio recording to be used as impeachment. When X testified in his own defense that his Jeep had been towed the night before that 1st shooting in 2017 and was in storage for a few days and offered the receipt into evidence that opened the door for the evidence to be used as impeachment.

The court agreed that under Penal Code Section 632 an electronic recording of a confidential communication is not admissible in any judicial proceedings unless all parties had consented to the recording but that the statute does not prohibit the use of such recording to impeach a witness making statements inconsistent with those conversations. The rationale for this exception of being able to use the audio for impeachment purposes is that the protection of section PC 632 cannot be construed to confer upon a testifying witness the right to commit perjury. The court said this same rationale also applies to his other 2 objections of “right to counsel” and “settlement negotiation.” The court said that X, by taking the stand and seeking to admit the receipt, which contradicted surveillance audio footage, in effect, was giving himself an alibil and so he “opened the door” to cross-examination about whether he denied involvement in the shooting. When X had refused to answer the question, it was not imprper to play the audio clips related to the gunshot.

2. Surveillance footage: The court said proper foundation was laid that it automatically and contemporaneously recorded the images and the data imprinted on the photographs when was triggered. A police officer had also testified that he went to X’s residence and saw a red jeep there.

Quintero vs. Weinkauf (2022) [San Mateo County – 1st district.]

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