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What does “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.” in a California Restraining order mean?
2nd District Excerpt of unpublished Opinion
Second, read in context, “legal papers” is limited to formal documents related to a lawsuit, such as the summons and complaint, discovery requests, an offer of compromise (see § 998), or an answer to a cross-complaint.
The phrase “service of legal papers” does not include e-mails for the simple reason that formal legal documents cannot be served in that manner.
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 form1 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). unpublished2
- 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.
- Plain Meaning Rule
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.
a state of public tranquility: freedom from civil disturbance or hostility – breach of the peace Blacks Law Dictionary 7th Edition
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
- 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/
150 pages of instructions for the Pro Per appellant litigant including a sample brief http://www.courtinfo.ca.gov/
- 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…
The JCC & Legislature intended to allow papers to be exchanged that are not filed with the court such as Discovery, 998 Offers, arranging meetings, subpoenas, interrogatories, Offers in Compromise, banter, demand letters, pre-litigation remedies, as we can see from the minutes of the JCC committee meeting, cited in the definition of “related.” If not, it would be redundant and superfluous to say that papers must go through a 3rd party as Code of Civil Procedure §414.10 requires that anyway.
vii. Legal papers
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.sc self service.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/
associated: connected by similarities or a common source
Encarta ONLINE Dictionary
JCC Committee Member – Hon. Mary Ann Grilli, Judge, commented:
“I suggest adding related to a court case. I am not sure what other legal papers might be needed.”
The committee’s response was:
… the committee discussed this wording at length. Litigants may need to exchange legal documents that are not so clearly “related to a court case.” …JUDICIAL COUNCIL OF CALIFORNIA, Family and Juvenile Law Advisory Committee, August 27,2003, Domestic Violence Prevention Act Forms Pages 41 & 42
- Court case
issue: a matter in question or a problem
The case here is simply a matter of excessive expenditures, isn’t it? Encarta Online Dictionary
1Similar to JCC Form # CH 140
2CRC Rule 8.1115. (b) Exceptions An unpublished opinion may be cited or relied on: (1) When the opinion is relevant under the doctrines of law of the case, res judicata, or collateral estoppel;
A copy of this case is attached per ( c )
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. sc self service.org
Documents containing a statement of legal status, identity, authority or ownership, or providing evidence of some type of obligation. Such documents include wills, deeds, leases, titles, birth certificates , and contracts. Legal papers may also refer to documents, such as a complaint or summons, prepared in order to pursue a legal cause of action. nolo.com/
Legal papers – Documents issued by a court, officer of the court, attorney, government agency or administrative agency requiring the university or any unit of the university to appear in court,provide testimony, documents, records, or property, or to take or refrain from taking some action. Examples of legal papers include subpoenas, court pleadings (summonses, complaints, court orders, interrogatories, notices of deposition, requests for production of documents, notices to admit, and all other forms of demands for disclosure), restraining orders,garnishments and mechanics liens… Note: Responsibility for certain types of routine reporting to governmental agencies, such as the EPA and the Department of Labor, has been delegated, with the consent of University Counsel, to individual units. These routine procedures are not covered by this policy.
Process Server – One who delivers legal papers.
Service Delivery of legal papers by one of the means authorized by law.policy.cornell.edu/
“legal paper” means a pleading or other paper filed in an action, but does not include
(1) a writ of summons or a complaint that is original process naming an original defendant or an additional defendant, unless the court by local rule provides otherwise, or
(2) a notice of appeal from an award of a board of arbitrators or a notice of appeal or other legal paper, the filing of which is prescribed by the Rules of Civil Procedure Governing Actions and Proceedings before District Justices. evans-legal.com/
“legal paper,” a pleading or other paper filed in an action, including exhibits and attachments. fjdefile.phila.gov/
DOCUMENTS – The deeds, agreements, title papers, letters, receipts, and other written instruments used to prove a fact. Documents is also understood evidence delivered in the forms established by law, of whatever nature such evidence may be, but applied principally to the testimony of witnesses.
Public documents are all such records, papers and acts as are filed in the public offices of the United States or of the several states; for example, public statutes, public proclamations, resolutions of the legislature, the journals of either branch of the legislature, diplomatic correspondence communicated by the president to congress, and the like. These are in general evidence of the facts they contain or recite. lectlaw.com/
- a popular generic word among lawyers for any paper with writing on it. Technically it could include a piece of wood with a will or message scratched on it. dictionary.law.com
inspection of documents
- the right to examine and copy the opposing party’s papers in a lawsuit which are relevant to the case. A demand (legal request) may be made, but the categories of documents must be stated so that the other party can know what he/she must produce. If the opposition either refuses to produce some documents or appears to hold back, the party wanting to see the documents can bring a “motion to produce” requesting a court order to produce and a penalty (sanctions) to be paid for failure to honor the demand. A party may also use a subpoena duces tecum to obtain specific documents if they are known to exist. All of these procedures are part of the discovery process, intended to give both sides extensive pre-trial information. Such exchanges of documents can lead to settlement, minimize surprises at trial and keep one side from hiding material, thus preventing the other from being able to introduce relevant material at trial. However, it is well known that many law firms obfuscate, delay, pretend to misunderstand requests and fail to be forthcoming. dictionary.law.com/