Defendants filed a demurrer to this cause of action claiming that I can't base my employment with a public entity on a contract since public employment is not held by contract but by statute.If I correctly plead the elements of the breach of contract, in general, would that be ok. Which statute is defendant talking about? I spoke with several attorneys briefly, and I was told that I can maintain a cause of action for breach of contract against a public entity. But I still don't understand what needs to be plead in my complaint for me to get over the part of it being statutory. Can anyone help me out here? which statute would my employment be based on? or is this not a valid objection and defendants just put it in their demurrer just because?
Disclaimer: The materials provided below are informational and should not be relied upon as legal advice.
If you truly had an employment contract, and the contract was breached by your employer, then you may sue your employer for the breach. When the defendant brings a demurrer, it must be supported by a Memorandum of points and authorities. The Memorandum needs to detail the law relied upon and how it applies to the case before the court. You need to read the Memorandum closely and see what the defendant is basing its argument on. There is limited time to serve and file an opposition to the demurrer, or the court may assume you have no arguments. Law and motion matters, such as demurrers and motions to strike, are fairly technical. You should retain an competent attorney to represent you.
Pleading the elements of breach of contract adequately is not the problem. The problem is correctly determining whether you have an employment contract. It is rare that public employment is held by contract. Not impossible, just very rare. But you would start by pleading the existence of the contract and incorporating by reference an attached copy of it. Then you would plead the details of the making of it and the facts on which you alleged breach.
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You may sue your employer for breach of contract, however, when you are suing a public entity special rules apply. For instance The Government Tort Claims Act (applicable to both torts and contracts) requires that most cases seeking money damages first make a claim against that public entity directly. After the complete claim is made, the entity has 45 days to answer and deny your claim. At that time (or after 45 days if there is no response) you can files a Complaint in a court of competent jurisdiction. A complaint should normally allege that the Plaintiff has met his/her "Claims Presentation" requirement in that they have first presented their claim directly to the public entity. You should probably consult with an attorney before moving forward. Best of luck.
This is why it was a huge mistake to try to sue a public entity in pro per. You are going to be eaten alive by savvy and experienced defense counsel throughout the litigation. Wise up and retain an attorney. It is your only hope.
Good luck to you.
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You should ask your lawyer this question. If you do not have a lawyer, you should get one. Attempting to litigate a case without legal counsel is a very bad idea. There are far too many ways for an individual who does not know the law and the procedural requirements to do irreparable harm to their case.
You might benefit from a consultation with an experienced employment law attorney and have them evaluate your case. The California Employment Lawyers Association maintains a list of employment law attorneys who represent employees against employers. Follow the link to: www.cela.org.
Best of luck
If your case is important to you, and I assume it is, and if it has any validity, you should do everything you can possibly do to get an attorney. Law is a professions. Attorneys are required to go through three years of specific education just to be allowed to take the California Bar Exam (with a few exceptions). And we all know there are good and bad lawyers. What makes a lawyer good or bad might have a lot to do with experience and knowledge gained on the job. You are simply no match for an attorney who has the legal education and experience to know what he or she is doing.
Perhaps you tried to find an attorney but couldn't. If you are having trouble finding an attorney for your case, there are several possibilities:
-- you are not looking in the right place for the right kind of attorney;
-- your case does not have as much value as you think; or
-- you are not presenting your case in a way that makes sense to the attorneys (note my suggestions below).
Employment attorneys want certain information right up front: the name of the defendant, the name of the employee; if the employee was fired (or denied reasonable accommodation, or laid off, or whatever the issue is, in five words or less); the date this happened; the reason the employer gave for whatever happened; how long the employee worked for the defendant; what job the employee did; how much the employee made; and any deadline. In your case, a potential attorney will want to know, and need to know, the status of the case in court. Most attorneys are not eager to take over a case already filed by another attorney, much less by a pro per, so be prepared to make a lot of calls.
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 there is a good resolution to this situation.
* * * www.thespencerlawfirm.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 must not be taken as legal advice. Legal advice must pertain to specific, detailed facts which are impossible to gather on a public web site like Avvo. * * * No attorney-client relationship is created based on this information exchange. * * *
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