“Why isn’t she being prosecuted for this recording? In California both parties must agree to recording before it can be legally done.”
She and TMZ both claim that he knew he was being recorded, and when you hear the full recording, it’s clear he knew. I don’t know if that’s true or if we’ll ever hear evidence, but that’s what is being ‘reported’.
If so, he was very foolish. Or arrogant to the point of foolishness.