Can I delay showing evidece &nexhibits to plaintiff until ready to impeach testimony?

[trosot]

Can I delay showing evidece &nexhibits to plaintiff until ready to impeach testimony?

What is the name of your state (only U.S. law)? California


I want to impeach the testimony of my landlord who reneged on an oral agreement. We agreed that he would waive one month’s worth of rent as consideration for my promising not to sue him. I have a non-confidential video that I secretly recorded of that transaction.

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Prior to that agreement, he had credited my account for $30.00, as partial reimbursement for some pest-control products that I had purchased. (On the next month’s itemized rent receipt, he wrote the following:

credit
$1,200 mo. rent - $30.00 (spray) = $1,170.00

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(Note: on the receipt, the word "credit" appears directly above "$30.00 (spray)"; but it didn't display properly in this post.)

I have still have the receipt whereon is detailed the $30 credit, for pest-control spray.

Subsequently, I served the landlord with ROGs. I asked him to state the details of the agreement to credit me one month’s rent in exchange for my forbearance from suing him. He responded that there was never any such agreement. In another interrogatory, I asked him to explain the reason for the $30.00 credit. He responded that the credit was full payment for my having agreed not to sue him.

Questions:

1. At trial, can I defer showing the landlord the receipt as an exhibit, until I am ready to impeach his testimony?
2. Likewise, when it comes time to present all my evidence to landlord, in advance to actually using it in court, can I withhold the video until I am ready to impeach his testimony?


Rules of Court:

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Rule 3.52 MARKING OF EXHIBITS
All exhibits must be exchanged and pre-numbered, except for those anticipated in good faith
to be used for impeachment. All exhibits must be pre-numbered before any reference thereto by
counsel or a witness.

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Rule 3.151 MARKING OF EXHIBITS FIRST DISCLOSED DURING TRIAL
Counsel must mark for identification an exhibit which has not been pre-marked and which
is being used for impeachment before showing the exhibit to opposing counsel or referring to it. To avoid disruption and delay, the exhibit should be presented to the clerk for formal marking after the evidence regarding it is taken.
(Rule 3.151 new and effective July 1, 2011)

 

[racer72]

Judges don't like folks playing games like this. You must watch too much TV where the line between real and fiction is quite blurred. You must give your opposition the chance to refute any evidence or it will not be allowed.

 

[sandyclaus]

What is the name of your state (only U.S. law)? California


I want to impeach the testimony of my landlord who reneged on an oral agreement. We agreed that he would waive one month’s worth of rent as consideration for my promising not to sue him. I have a non-confidential video that I secretly recorded of that transaction.

---

Prior to that agreement, he had credited my account for $30.00, as partial reimbursement for some pest-control products that I had purchased. (On the next month’s itemized rent receipt, he wrote the following:

credit
$1,200 mo. rent - $30.00 (spray) = $1,170.00

---

(Note: on the receipt, the word "credit" appears directly above "$30.00 (spray)"; but it didn't display properly in this post.)

I have still have the receipt whereon is detailed the $30 credit, for pest-control spray.

Subsequently, I served the landlord with ROGs. I asked him to state the details of the agreement to credit me one month’s rent in exchange for my forbearance from suing him. He responded that there was never any such agreement. In another interrogatory, I asked him to explain the reason for the $30.00 credit. He responded that the credit was full payment for my having agreed not to sue him.

Questions:

1. At trial, can I defer showing the landlord the receipt as an exhibit, until I am ready to impeach his testimony?
2. Likewise, when it comes time to present all my evidence to landlord, in advance to actually using it in court, can I withhold the video until I am ready to impeach his testimony?

I wouldn't plan on using the video at all. CA law is a two-party/all-party state for video recording, which means you cannot video tape with audio without permission from ALL parties. As you stated, you secretly recorded, so you obviously didn't even ask for permission to record, let alone obtain it.

If you try, you can face both criminal penalties (CA Penal Code 632) and civil penalties (CA Penal Code 637.2) for doing so.

Sounds like you've been watching too many court TV shows. A lot of the things they do aren't legally acceptable in most jurisdictions. They put them in the shows for the audience attractiveness. Your current defense strategy is an excellent example.

 

[trosot]

About California's Video/Audio Recording Law...

Concerning California laws regarding audio and video recording: The conversation I spoke of occurred at the front desk of the office, where other tenants could periodically approach to handle their affairs with management and hear our conversation. There was no reasonable objective expectation of privacy.

California's wiretapping law is a "two-party consent" law. California makes it a crime to record or eavesdrop on any confidential communication, including a private conversation or telephone call, without the consent of all parties to the conversation. See Cal. Penal Code § 632. The statute applies to "confidential communications" -- i.e., conversations in which one of the parties has an objectively reasonable expectation that no one is listening in or overhearing the conversation. [The reasonableness of the expectation would depend on the particular factual circumstances.] See Flanagan v. Flanagan, 41 P.3d 575, 576-77, 578-82 (Cal. 2002). A California appellate court has ruled that this statute applies to the use of hidden video cameras to record conversations as well. See California v. Gibbons, 215 Cal. App. 3d 1204 (Cal Ct. App. 1989).

Confidential communication is anything a person reasonably expects to be private and confidential. It is not confidential if it can naturally be overheard by someone else. For example, if you are in public and do not expect to be recorded, but expect others to hear you, then it is not confidential. - However, you do not need any consent if the communication is not confidential. -

 

[ecmst12]

You can attempt to make that argument in court. You may or may not be successful. You still need to disclose your evidence properly for it to be admitted.

 

[trosot]

Is my reading of Cal. Penal Code § 632 correct, i.e. it only applies to confidential?

You can attempt to make that argument in court. You may or may not be successful. You still need to disclose your evidence properly for it to be admitted.

This is an unlawful detainer trial over nonpayment of rent. I allege an agreement to waive rent as consideration for my agreement not to sue.

Did such an agreement need to have writing? Would any such evidence be considered by the court without a writing, especially if I was were more than one month past due when the 3-day notice was served?

After all, even month-to-month rental agreements can be either oral or written. And, I believe that rental agreements which cover a rental which concerns a rental period of more than one year must be written.

 

[quincy]

trosot has an additional thread started in Civil Litigation about California's wiretapping law ("California Wiretapping Law Evidence admissibility of non-confidential recording").

I have advised him to keep all questions in this thread, including ones that involve California's wiretapping law, so that all related facts are kept together.

To trosot: since all facts matter in law, if all related questions are kept to one thread, this can better help volunteers answer the questions posed. Thanks.

 

[tranquility]

I agree with quincy, all the facts need to be in the same thread. These are some issues that can get complex really fast.

I also agree with sandyclaus, I would not show think of the video as proof. Personally, I think it is an illegal recording. As such, it won't get in. But, the reason why it should not be risked, conversations in "public" have a reasonable expectation of privacy as much as those in in private. For example, say a third person unrelated to the conversation came up and started recording in secret, would that be OK? What if he was just close enough to not join but stand and talk to another nearby, could he record you then? At what point is there no reasonable expectation? If other tenants did come up, the conversation could change. Shoulda, woulda, coulda, are not good things if what you use for evidence could end you up in prison if your estimate of the law is wrong.

 

[Sloop John D]

Normally you cannot delay revealing the nature of evidence until trial for purposes of surprising the other party. In fact, if you have evidence that shows the landlord is completely wrong, it would be in your best interest to reveal the evidence so you can attempt to resolve the matter without having to go to trial.

That being said, unlawful detainer actions are usually summary actions where you see a lot of people defending themselves and representing themselves pro se. Because of the summary nature of the action and the lack of sophistication of the parties, there may be situations where you argue the unlawful detainer motion without engaging in a full discovery period.

If either the court or the other party has asked to see your evidence, you must present it unless it is protected by a privilege. Trying to hide evidence until trial could result in its exclusion.