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I need to file a Writ of Mandate in Orange County Superior Court against the CUIAB, and it is due by 09/25/13.

Fullerton, CA |

I was unemployed and receiving UI benefits until early October of 2011. Subsequent to that, and thank god - I became self-employed selling things on eBay. In April of 2012 I filed for SDI for the Self-Employed. The EDD used that information against me, and claimed that I had received an over-payment of UI benefits while being self-employed. They took the number that I had stated was my income for the year 2011, and divided it by the 52 weeks in the year, and thus created their very own narrative of my life for the year 2011. In 2011, I was still in college, and I had a a daughter who was only 3 yrs old at the time. There is no way that I was working, and making the exact sum of $ each and every week for the entire year. There was little to no overlap. I had high gross revenue Q4 2011. HELP

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Attorney answers 3

Posted

You have not posted a question. If you need an attorney to assist you, I would suggest you look either on this site in the Find a Lawyer section, or go to www.cela.org, the home page for the California Employment Lawyers Association, an organization whose members are dedicated to the representation of employees against their employers.

Good luck to you.

This answer should not be construed to create any attorney-client relationship. Such a relationship can be formed only through the mutual execution of an attorney-client agreement. The answer given is based on the extremely limited facts provided and the proper course of action might change significantly with the introduction of other facts. All who read this answer should not rely on the answer to govern their conduct. Please seek the advice of competent counsel after disclosing all facts to that attorney. This answer is intended for California residents only. The answering party is only licensed to practice in the State of California.

Posted

If you have received a Notice of Overpayment, you have a right to file an appeal (you must do so before the deadline) and explain yourself at an Appeal Hearing. At all times that you were receiving UI Benefits, you needed to be able and available to accept full time work, you needed to be looking for full-time work and you needed to keep a log of your job search to remain eligible for UI benefits. If neither of these issues touch on what you are dealing with, like Mr. Pederson advised, you should seek counsel to assist you.

Lesly J. Adams has been licensed to practice law in California since 2010. The information presented here is general in nature and is not intended, nor should be construed, as legal advice for a particular case. This posting does not create any attorney-client relationship with the author. For specific advice about your particular situation, consult with your own attorney.

Posted

Unemployment benefits are paid under specific circumstances that require far more than just being unemployed. Generally, a person claiming unemployment benefits (a “claimant”) is eligible for benefits if ALL of the following is true: he or she is (1) unemployed due to no fault of his or her own; (2) physically able to work; (3) actively seeking work; (4) ready to accept work immediately; (5) has received enough wages during the base period to establish a claim; and (6) meets eligibility requirements each week benefits are claimed. An overview of these requirements can be found on the web site of the California Employment Development Department (EDD) http://www.edd.ca.gov/Unemployment/Eligibility.htm.

It sounds like you were not eligible for unemployment benefits because you were not available for work. If that is your situation, you cannot expect to win a writ of mandate or even an Unemployment Insurance Appeals Board appeal.

However, if you can still appeal the decision through the Unemployment Insurance Appeals Board, you should because you may be able to provide information to get the amount of the repayment reduced or maybe even removed. You will probably do much, much better if you have an attorney represent you.

And by the way, writs of mandate are really, really difficult to win and it is unusual for an attorney to accept a mandamus case on a contingency basis, unless it is part of a larger case. You would probably have to pay the attorney more than you serve to gain in the underlying case.

Plaintiffs employment attorneys in California charge anywhere from $250 to $750 an hour depending on many factors including experience, area of law, geographic location, work load, interest in the case, difficulty of the case and more. For an unemployment appeal, you are probably looking at five to ten hours of attorney services. For a writ of mandate, you are looking at probably three or four times as many hours.

To find a plaintiffs employment attorney in California, please go to the web site of the California Employment Lawyers Association (CELA). CELA is the largest and most influential bar association in the state for attorneys who represent working people. The web site is www.cela.org. Click on "Find a CELA Member" and you can search by location and practice area. Many CELA attorneys represent clients throughout the state.

I hope you can resolve your situation and wish you the best.

@MikaSpencer * * * twitter.com/MikaSpencer * * * PLEASE READ: All legal actions have time limits, called statutes of limitation. If you miss the deadline for filing your claim, you will lose the opportunity to pursue your case. Please consult with an experienced employment attorney as soon as possible to better preserve your rights. * * * Marilynn Mika Spencer provides information on Avvo as a service to the public, primarily when general information may be of assistance. Avvo is not an appropriate forum for an in-depth response or a detailed analysis. These comments are for information only and should not be considered legal advice. Legal advice must pertain to specific, detailed facts. * * * No attorney-client relationship is created based on this information exchange. * * * Marilynn Mika Spencer is licensed to practice law before all state and federal courts in California and can appear before administrative agencies throughout the country. She is eligible to represent clients in other states on a pro hac vice basis.

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