California Employment Law
California Employment Law Questions Answered by Legal Experts
Hello. I can wait, I have a little time, thank you. Also since I am in NC and this is in Cali I would like to find an attorney (if possible) to represent me, however I can only pay if we win so not sure it works like that as it does for PI. Either way I truly appreciate any guidance you can provide. This entire situation is something I want behind me.
Welcome! I am here to educate and help you. Please positively rate my answers, including follow ups, so that I may get credit for my work. Thank you!
Hello and thank you for contacting JA. I see that your question has not been answered, so I would like to try to help you. I am a practicing CA employment law attorney, but the site rules prevent us experts from giving customers our contact information, or referring other attorneys. I am sorry about that, but it is JA policy and no expert can circumvent it without violating the terms of service! With that said, I want to give you some links that are helpful in your situation. Since this matter was already heard by the CA Unemployment Insurance Appeals Board, and a decision rendered in your absence, the next step will be to take this to the superior court for a ruling. In order to do so, you must draft a Writ of Mandamus (Mandate), a copy of which is accessible at the following link: http://docstoc.com/docs/64772990.
This is another link to helpful information, specifically details on the writ, and links to copies and case law: http://scllhip.saclaw.lib.ca.us/ipac20/ipac.jsp ?session=133339N36KE60.183&profile=scl&source=~!horizon&view=subscriptionsummary&uri=full=3100001~!16964~!2&ri=14&aspect=subtab13&menu=search&ipp=20&spp=20&staffonly=&term=California+Administrative+Mandamus&index=.TW&uindex=&aspect=subtab13&menu=search&ri=14#focus
Unfortunately, your question is very fact intensive, and I am limited in my ability to help you online, other than to direct you to resources that will guide you in the preparation of the writ and the steps to take to argue your case. The other advice would be to retain an attorney in CA, but I understand that you need a contingency fee plan. Not alot of attorneys will handle this sort of case on contingency, because drafting a writ can take hours, and appearing will take more hours, and you see the point. However, you can look into county Legal Aid, or contact the State Bar of CA. Either entity can guide/refer you to attorneys who may be able to help you in full or limited capacity.
In the meantime, I want to offer the following information: a writ of mandate is a court order telling someone to someone to do something; in your case, you'd be asking the court to tell Employment Development Department to give you unemployment benefits. (Mandamus is Latin for mandate.) You would have to file a petition for a Writ of Mandate, asking the court to issue a writ. The writ petition must include a sworn statement of facts and a legal argument explaining why EDD made the wrong decision. There are also specific requirements for the way a writ petition is formatted.Because a writ is complicated and not something that anyone can explain sufficiently only, I would suggest a trip to the local law library. Every court must have one, and law schools and universities often have law libraries that are open to the public. There will be many books and volumes explaining the issue in greater detail.Unfortunately, it would probably cost more to hire a lawyer for the writ than you would get in unemployment benefits if you won.
As a brief primer, "either the employer or claimant can appeal an EDD decision. This "first level" appeal is heard by an administrative law judge (ALJ) in the California Office of Appeals, who will issue a written decision.After this first level appeal, any dissatisfied party (or the EDD itself) can make a "second level" appeal to the California Unemployment Insurance Appeals Board (CUIAB). After hearing, the CUIAB will issue a written decision.
At that point, any dissatisfied party can file a Petition for Writ of Mandate with the Superior Court. For information on the writ process, see our Legal Resource Guide on Writs of Administrative Mandate."
I sure hope this information gives you some guidance on your situation. My goal is to help customers, and I sincerely wish you the best in this regard and beyond. If I can help you in any other way, please click reply to expert and I will respond again.
I only ask that you kindly rate me positively, otherwise I will not receive any credit for my work. Thanks and take care.
DISCLAIMER: Answers from Experts on JustAnswer are not substitutes for the advice of an attorney. JustAnswer is a public forum and questions and responses are not private or confidential or protected by the attorney-client privilege. The Expert above is not your attorney, and the response above is not legal advice. You should not read this response to propose specific action or address specific circumstances, but only to give you a sense of general principles of law that might affect the situation you describe. Application of these general principles to particular circumstances must be done by a lawyer who has spoken with you in confidence, learned all relevant information, and explored various options. Before acting on these general principles, you should hire a lawyer licensed to practice law in the jurisdiction to which your question pertains.
The responses above are from individual Experts, not JustAnswer. The site and services are provided “as is”. To view the verified credential of an Expert, click on the “Verified” symbol in the Expert’s profile. This site is not for emergency questions which should be directed immediately by telephone or in-person to qualified professionals. Please carefully read the Terms of Service (last updated February 8, 2012).