Wednesday, March 3, 2010

Pushing Back Against Retaliation

I delivered this memo to my attorney last week.
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Date: February 25, 2010
To: _____________, Attorney
From: Richard Behling
Re: Case # 39-2009-00212085-CU-OR-STK

Please serve the Defendants, on my behalf, a letter demanding cessation of their retaliatory noise measure employed against me. Shortly after filing the private nuisance lawsuit against them, the Defendants mounted an outdoor radio speaker high on the on the wall of the outbuilding just over the fence and play the radio all day, every day.

The facts that support Defendants’ actions being deliberate retaliation are these:

1. There was no radio speaker in this corner of their yard on Wednesday, March 25, 2009. (picture #1)

2. Lawsuit was served on Defendants on Memorial Day, Monday, May 25, 2009 (proof of service).

3. On Thursday, June 4, 2009, the Defendants’ yard radio was played at 3:00 a.m. loudly enough to wake me. The speaker was located somewhere in the middle of their yard. A 27-second digital video/audio clip of that disturbance is included in Plaintiff’s Response to Demand for Production. (Digital Media\Yard Pics\MVI_1204_04Jun_3am music)

4. On or before June 30, 2009, the outdoor speaker appeared in the corner yard sitting atop plastic milk crates and pointed my direction. (picture #2, included in Plaintiff’s Response to Demand for Production. (Digital Media\Yard Pics\IMG_1298_TURN UP THE RADIO)

5. On or before July 24, 2009, the speaker was mounted high on the outbuilding wall and most often rotated to point my direction. (picture #3 and picture #4)

6. The radio is on all day, every day forward, generally beginning around 7:00 a.m. in contravention of the 8:00 a.m. limit imposed in the Manteca Municipal Code, Residential Noise Ordinance. (MMC, Chapter 9.52.030 and 9.52.040)

7. Major retaliation occurred on Saturday and Sunday, February 6th and 7th, 2010, when the radio was turned on loudly before 6:00 a.m. each day. (Manteca Police Department incident report # 2010-3600)

8. The next weekend, Saturday and Sunday, February 13th and 14th, the radio was turned on around 7:00 a.m. (Manteca Police Department incident report # 2010- 4288, printed copy of noise ordinance supplied to responding officer)

9. The next Sunday, February 21st, the radio was turned on very loudly around 8:00 a.m. to protest the previous two Sunday police calls. (picture #5)

10. Defendants’ return to 7:00 a.m. radio startups beginning Monday, February 22nd.

In truth, this retaliation is a replication of the noise nuisance caused by the icemaker. The speaker is mounted in virtually the same noise corridor as the icemaker [ed., see icemaker's condenser in upper left corner of picture #4] and for months served to ADD to the noise. Whenever the icemaker does not function, the radio serves to keep the noise going.

In light of this replacement nuisance purpose of the Defendants, I am seeking removal of the entire outdoor radio system on the grounds that it’s use is “so prolonged or unnatural or unusual in [its] use, time or place as to cause or contribute to the unnecessary and unreasonable discomfort of any persons within the neighborhood from which said noises emanate or which interfere with the peace and comfort of residents or their guests, … or which may detrimentally or adversely affect such residences….” (MMC 9.52.030 Prohibited Noises - General Standard)

I want this letter served on the Defendants and their attorney of record under the referenced case number.

Pictures #1 - #5
Manteca PD Incident Report #2010-3600
MMC 9.52

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