Section 6 of DV 130 Guarantees the Right to Petition & Sue
The JCC's wording of the injunction in form # CH140 at §6 mandated by the legislature under Civil Code §527.6 (m) guarantees the restrained person's Constitutional right to petition and/or due process by using the courts to settle grievances, with a few simple caveats. Statutes & JCC forms, since they are mandated by statute, must be interpreted to preserve their constitutionality. People v Castello 65 Cal.App4th
Effective January 1, 2004, the DV-130 form was modified to unequivocally provide, without any optional boxes to check, that Peaceful written contact through a lawyer or a process server or another person in order to serve legal papers is allowed and does not violate this order.
Apparently, the DV-130 form was revised to ensure a restrained person's right to file suit and serve papers through a process server or other person. Court of Appeal, Second District, Division 3, California. Frederick H. MORRIS, v. Kathleen M. JONES, No. B174418. (Los Angeles County Super. Ct. No. GQ001685). unpublished
A. Definitions JCC Form CH #140 §6
Section 6 of the Injunction reads in relevant part:
Peaceful written contact through a lawyer or a process server or other person for service of legal papers related to a court case does not violate these orders.
When writing statutes, the legislature intends to use ordinary English words in their ordinary senses. The United States Supreme Court discussed the plain meaning rule in Caminetti v. U.S., 242 U.S. 470 (1917), reasoning "[i]t is elementary that the meaning of a statute must, in the first instance, be sought in the language in which the act is framed, and if that is plain... the sole function of the courts is to enforce it according to its terms." And if a statute's language is plain and clear, the Court further warned that "the duty of interpretation does not arise, and the rules which are to aid doubtful meanings need no discussion."
The language of the law must not be foreign to the ears of those who are to obey it – Judge Learned Hand
In Thomas v. Quintero (App. 1 Dist. 2005) 24 Cal.Rptr.3d 619, 126 Cal.App.4th 635, we are required to determine the meaning of a statute as written, and not to supply a meaning which ignores the text.
ii. Peaceful
iii. Written
to display text or images on a computer monitor
put words on paper: to put words, letters, numbers, or musical notation on a surface using a pen, pencil, or similar instrument Encarta online dictionary
iv. Through a lawyer or a process server
This provision only provides that an attorney can forward papers, it does not require that the attorney handle the case.
(1) Right to Self Representation
"... the right to file a lawsuit pro se is one of the most important rights under the constitution and laws.” Elmore v. McCammon (1986) 640 F. Supp. 905
The Supreme Court noted that "[i]n the federal courts, the right of self-representation has been protected by statute since the beginnings of our Nation. Section 35 of the Judiciary Act of 1789, 1 Stat. 73, 92, enacted by the First Congress and signed by President Washington one day before the Sixth Amendment was proposed, provided that 'in all the courts of the United States, the parties may plead and manage their own causes personally or by the assistance of counsel.'" Faretta v. California, 422 U.S. 806, 813 (1975).
(a) Court Self Help Programs
The CA Courts recognize the right of self representation and have provided numerous resources for the Pro Per litigants. For example:
Restraining Orders
http://www.courtinfo.ca.gov/
Appeals
http://www.courtinfo.ca.gov/
150 pages of instructions for the Pro Per appellant litigant including a sample brief
http://www.courtinfo.ca.gov/
v. Other person for
It does not matter who the restrained person chooses to deliver paperwork, as long as he does not do it himself. The pro per litigant can use any other person, a licensed process server or hire an attorney at great expense, just so long as the communication is in writing, relates to a court case...
vi. Service
Legal Papers or publications, as defined by cases related to Civil Code 47 (b) dealing with privilege, Encarta and Black's Law dictionary, are basically papers having anything to do with a legal situation, which would further the interests of litigants in a pending or contemplated court case.
relating to the law or to courts of law took legal action assortment of documents: a collection of documents relating to an issue or subject official papers in the archives in writing Encarta ONLINE Dictionary
anything related to the law - Real Life Dictionary of the law, Hill, General Publishing Group, 1995 ISBN 1-881649-74-1
Absolute privilege set forth in this section providing that a privileged publication is one made in any legislative or judicial proceeding, or in any other official proceeding authorized by law, attaches to any publication that has any reasonable relation to the action and is made to achieve the objects of the litigation, even though published outside the courtroom, and even though no function of the court or its officers is involved; the publication need not be pertinent, relevant or material in a technical sense to any issue if it has some connection or relation to the proceedings. Pettitt v. Levy (App. 5 Dist. 1972) 104 Cal.Rptr. 650, 28 Cal.App.3d 484
(1) Demand Letters
The courts own website and major newspapers, ask that Pro Per litigants try to settle their issues without clogging up the courts. Settling promotes the Public Policy of fairness & relevancy. McClure v. McClure, 100 Cal. 339, 343 (1893); Skulnick v. Mackey, 2 Cal. App. 4th 884, 891, 3 Cal. Rptr. 2d 597 (1992)
Have I tried everything else? Before filing in court, you must "exhaust all pre-filing remedies" = you tried everything else first Page 12 http://www.sanmateocourt.org/
Before you file! Make sure you have talked to the other party first, There may be a simple solution, Maybe they were unaware of all the facts, Maybe it is just a misunderstanding and filing a case will just make things harder, Try to resolve the case with the other party First
Page 16 ibid
Steps in a Civil Court Case, How can I solve this without going to Court? Contact the other party. Or contact their lawyer. Ask them to negotiate so you can settle the case without going to trial. If that doesn’t work, try a mediation program in your community – Superior Court of California, Santa Clara County, Self Service Center, Before you sue http://www.scselfservice.org/ Last accessed April 21, 2009
Small Claims Court requires Plaintiff's to send a demand letter before filing in Section 4 of SC 100 Rev. 1/2008 and the Courts Website even has a program to help potential litigants write it http://www.courtinfo.ca.gov/
Los Angeles Times 2/13/2000
recommend that the first time the noise becomes a concern, you should contact the neighbors directly and speak with them politely..If the noise continues, you should immediately notify the on-site manager or owner of your property and make a written complaint. The on-site manager or owner may be able to resolve the issue or mediate by asking for a meeting with all parties to reach an understanding.
... written documentation is important if legal action is required.
If the noise continues, you may have to consider terminating your lease, based on a breach of the "quiet enjoyment" clause contained in most leases. http://articles.latimes.com/
viii. Related
associated: connected by similarities or a common source
Encarta ONLINE Dictionary
JCC Committee Member - Hon. Mary Ann Grilli, Judge, commented:
ix. Court case
Steps in a Civil Court Case
How can I solve this without going to Court?
Contact the other party. Or contact their lawyer. Ask them to negotiate so you can settle the case without going to trial. If that doesn’t work, try a mediation program in your community. scselfservice.org scselfservice.org/
