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

[MarkJ]

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

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

---

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

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:

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.
---
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)

 

[army judge]

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

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

---

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

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:

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.
---
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)

You do know that ORAL agreements, insofar as property are concerned are unenforceable at law, right?

All agreements pertaining to real estate MUST be reduced to writing (a lease or a contract).



Google "statute of frauds".




As far as the recording is concerned, you might want to say nothing about that.

Your state (CA) has some tough recording laws, even in public places.

http://www.dmlp.org/legal-guide/california-recording-law

 

[MarkJ]

Month-to-month rental agreements rental agreements can be either oral or written. I explained that the oral agreement for the credit was such that it applied to one-month's rent. I understand that any changes in terms of tenancy must be reduced to writing though.

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. -

 

[MarkJ]

California Rules of Court - 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.

I took the above rule to mean that a party need neither mark for identification nor present any exhibit that he/she intends, in good faith, to use for impeachment purposes, until such time for impeachment arises. I was wondering if my interpretation was correct. If so, then also, I was wondering if parties could likewise withhold evidence that he/she intended, in good faith, to use for impeachment purposes.

 

[cbg]

This isn't Perry Mason. You don't get to have an "aha!" moment mid-stream.

 

[army judge]

First of all, it's landlord tenant court. Your case might not even be heard by a judge, just a referee.

That aside, you asked for advice, not oral argument.

I gave you information, as law isn't a DIY project.

I wish you luck with it.

No rental agreement can be oral. A month to month tenancy operates under state statute. Therefore, it isn't oral. It's a constructive lease based on state statute. Again, I suggest you Google "statute of frauds" to gain some insight on the matter.

Finally, the rest of what you proffer is so far off base, prepare for the judge or opposing counsel to further instruct you.

Month-to-month rental agreements rental agreements can be either oral or written. I explained that the oral agreement for the credit was such that it applied to one-month's rent. I understand that any changes in terms of tenancy must be reduced to writing though.

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. -

 

[army judge]

California Rules of Court - 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.

I took the above rule to mean that a party need neither mark for identification nor present any exhibit that he/she intends, in good faith, to use for impeachment purposes, until such time for impeachment arises. I was wondering if my interpretation was correct. If so, then also, I was wondering if parties could likewise withhold evidence that he/she intended, in good faith, to use for impeachment purposes.

You're confusing marking of exhibits with evidence, and disregarding discovery. It's best not be cute. What you see in movies and on the Telly, that's not how things work in real life.

It takes me back to a question I once asked my mother after seeing a bad guy reappear on a western. I was about 7 or 8 years old and saw a villain get killed in a movie at a Saturday matinee. The next week he was killed again in a television show.

I asked mom, how can I guy die twice? She laughed, no she giggled, and said, "It's not real, son, they're actors. It's all pretend." Those legal shows, entertaining, but it's all pretend.