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socrateaser
socrateaser, Lawyer
Category: California Employment Law
Satisfied Customers: 34170
Experience:  Retired (mostly)
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Need to find an attorney in Orange County, CA asap, (if not

Customer Question

Need to find an attorney in Orange County, CA asap, (if not sooner) to file a petition in California Court for breach of employment and separation agreement.

CFO called me in May and said that they would not be making the payments that are its obligation under the Separation Agreement, he explained that should they sell its assets (product and Services), then it was his understanding there would be no obligation to honor the payments of the Separation Agreement. This scenario was previously discussed with CFO and CEO during negotiation of the Separation Agreement and language was added to the Separation Agreement that it was binding on “company or it’s successors” specifically to cover this scenario. The CFO rejected the stronger language proposed by my legal counsel claiming it was not 409A compliant, and that I would be fully protected should the company sell its assets. Now they doing exactly what they said and in the midst of executing a company purchase and going through due diligences in the next 2 weeks. I believe they hope to complete the sale and get there proceeds and hoping nothing will be filed to bring the matter to the forefront that would force them to meet there obligation under contract.

Key points:

1. My former employer has stopped making severance payment required under my executive employment/ separation agreement, additionally they owes me outstanding commissions and stopped making COBRA payment for medical insurance.

2. Additionally the "separation agreement" was excused in January 2011 due to close proximity in time between my execution of agreement and today they plan to sell there assets (product and services) so it's apparent my former employer had no intention of performing its obligations under the Separation Agreement, and intentional misrepresentation and fraud in the inducement of the Separation Agreement.

3. My separation agreement contains an arbitration provision, however it excludes from any arbitration requirements emergency equitable or injunctive relief claims not addressed through arbitration. I need Council to file an emergency proceeding to protect my interest including without limitation proceeding seeking a "writ" of attachment based on my former employer breach, its ongoing efforts to sell the assets, and any attempt by them to use that imminent transaction as a basis to withhold funds that they are contactually agreed to pay.

Can anyone advise on matter on how I should proceed?
Submitted: 3 years ago.
Category: California Employment Law
Expert:  socrateaser replied 3 years ago.
No one here can provide direct referrals to specific law firms or attorneys. If you need an employment rights and/or legal malpractice lawyer, then for a referral, see this link.

That said, I do not see any correlation between IRC 409A compliance and your severance plan being protected by a succession clause. Which means that you may have a malpractice claim against your previous lawyer for permitting this sort of contractual defect.

You could also claim a fraudulent transfer, if your prior employer does not obtain sufficient value for its assets to pay its debts, including yours. This could give you grounds for an emergency injunction to prevent the asset sale, or to secure sufficient funds to pay your damages for the breach of contract, on the theory that the employer is intentionally disabling itself from performing the contract.

Hope this helps.


And, if you need to contact me again, please put my user id on the title line of your question (“ToCustomerrdquo;), and the system will send me an alert. Thanks!

Customer: replied 3 years ago.
I understand regarding Attorney referral. I will find a California attorney.

I am wondering what immediate action I can take



Except for claims for emergency equitable or injunctive relief which cannot be timely addressed through arbitration, the parties hereby agree to submit any claim or dispute arising out of the terms of this Agreement to private and confidential arbitration to private and confidential arbitration by a single neutral arbitrator through Judicial Arbitration and Mediation Services, Inc. (“JAMS”). The JAMS Streamlined Arbitration Rules & Procedures in effect at the time of the claim or dispute is arbitrated will govern the procedure for the arbitration proceedings between the parties.
Expert:  socrateaser replied 3 years ago.
If you can make a credible allegation that the employer's actions are specifically intended to render it insolvent so as to avoid paying your debt, then that would be grounds for filing a complaint for injunction and for a temporary restraining order. That would stop the employer's asset sale until the court decides the underlying question.

The defendant employer will try to assert that the action is not an emergency and so should be subject to arbitration. Your reply would be that the contract agrees to permit injunctive relief, and so it within the court's jurisdiction to allow the issue of the employer's asset transfer to be litigated, rather than subjected to arbitration -- because if the court doesn't stop the asset transfer, then there will be nothing left to arbitrate.

It may be that by filing for the injunction and restraining order, the employer will stop and try to settle with you, because it will recognize that it cannot go forward and the buyer will back away unless the matter is quickly resolved.

And, if the entire transaction is a sham intended only to defeat your severance contract, then the employer will have an even greater incentive to stop, because it will know that the "game is over."

Hope this helps.


And, if you need to contact me again, please put my user id on the title line of your question (“ToCustomerrdquo;), and the system will send me an alert. Thanks!

Customer: replied 3 years ago.
Thank you for the reply. It's my understanding that in order to obtain a writ of attachment or other appropriate injunctive relief, I will have to qualify to post bond with the court. I don't have much credit so my credit score is 550 (everything paid for and no cards and bad divorce of 20 yrs), that said I do have the cash balance to put up for a bond ($150,000 the amount owed by the company). My question is why do I have to post a bond amount? Will i get this money back once the "writ" is executed and a judgement is made...

What is the process and what does it involve (California Law)? and more importantly please give me some kind of an idea of how long it takes for an attorney to prepare a petition focused on getting the writ done within a tight deadline like next week generally speaking, of coarse, 1 day, 2 days hours, electronically filed? etc.. This can give me some kind of an idea about hourly charge and a blended rate plan or contingence flat rate.

If there a service that can help me file a motion and writ from out of state so I can save on attorney cost (especially since they are counting on this being a factor in there favor...and they don't plan to use council on their side unless they have too).

I would like to have all the paperwork filed by the middle of next week, and have an understanding of qualifying for bond from you if possible. Additionally, my executive agreement says out state of texas laws. and my separation agreement says state of California and arbitration and no lawsuits anywhere. Can I file everything in Texas? And argue they never intended to honor the separation agreement since it was executed in January 2011? or would this open up more issues and prevent me from being able to move forward? I think if they had to come to texas and it would be one other thing to compel them to settle.
Expert:  socrateaser replied 3 years ago.
Thank you for the reply. It's my understanding that in order to obtain a writ of attachment or other appropriate injunctive relief, I will have to qualify to post bond with the court. I don't have much credit so my credit score is 550 (everything paid for and no cards and bad divorce of 20 yrs), that said I do have the cash balance to put up for a bond ($150,000 the amount owed by the company). My question is why do I have to post a bond amount? Will i get this money back once the "writ" is executed and a judgement is made...

A: You don't need to post a bond until after the court agrees to grant the injunction. So, worry about it later.

What is the process and what does it involve (California Law)? and more importantly please give me some kind of an idea of how long it takes for an attorney to prepare a petition focused on getting the writ done within a tight deadline like next week generally speaking, of coarse, 1 day, 2 days hours, electronically filed? etc.. This can give me some kind of an idea about hourly charge and a blended rate plan or contingence flat rate.

A: Attorney writes the pleadings and serves them on the defendant. I would expect this sort of pleading to take a day to think about and another day to write it up, then a day to file and serve.

If there a service that can help me file a motion and writ from out of state so I can save on attorney cost (especially since they are counting on this being a factor in there favor...and they don't plan to use council on their side unless they have too).

A: No. Only a member of the State Bar of California can bring this lawsuit. You will have to hire a California attorney/law firm. Period.

I would like to have all the paperwork filed by the middle of next week, and have an understanding of qualifying for bond from you if possible. Additionally, my executive agreement says out state of texas laws. and my separation agreement says state of California and arbitration and no lawsuits anywhere. Can I file everything in Texas?

A: If the separation agreement is at issue, then you need to sue in California, assuming that's where you entered into the agreement. If you were employed in TX, then you can sue in Texas, but that would change my answer completely, because TX civil procedure is quite different from California civil procedure.

And argue they never intended to honor the separation agreement since it was executed in January 2011?

A: That's common law fraud, rather than a fraudulent transfer. Very tough to prove, without an objective witness. But, you can plead it along with the fraudulent transfer complaint.

or would this open up more issues and prevent me from being able to move forward? I think if they had to come to texas and it would be one other thing to compel them to settle.

A: Maybe. Maybe not. Texas lawyers are less expensive per hour -- so, it could be an incentive to fight harder.


And, if you need to contact me again, please put my user id on the title line of your question (“ToCustomerrdquo;), and the system will send me an alert. Thanks!


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