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Joseph
Joseph, Lawyer
Category: California Employment Law
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Experience:  Extensive experience representing employees and management
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Hi - My fiance was working at Napa Community College and was

Customer Question

Hi - My fiance was working at Napa Community College and was terminated for cause but it was done unlawfully. We exhausted all ways to fight this within the terms of the Collective Bargaining Agreement. We had a three-day hearing that was NOT unbiased (as it is supposed to be) and filed a Writ of Mandamus to overturn the hearing. The hearing for that is happening in two weeks. We are just regular people who cannot afford a lawyer for this so we are doing it "in pro per". My questions are:

1. My fiance, Massi, does not have the greatest command of the English language for such complicated things like this plus I have witnessed everything and know as much and remember more, than he. He wants me to speak for him. I am not an attorney. Can he give me Power of Attorney to get around this? If not, what can we do to make it happen that I speak for him?

2. The College's lawyers submitted paperwork we received today. It stated that the judge must deny our Writ because we did not verify the Petition. What do I need to do to verify it?


3. They also stated the judge must deny our writ because we did not request the administrative record. What does that mean, exactly? What do I do about it? The College and we have all the records, emails and correspondence and other evidence for the last two years this has been going on. We did not submit all that stuff because we are not going there to try the case itself over again but to show how the hearing itself was biased and unfair and to get that overturned (for these reasons: to clear Massi's name and reputation, for principle, so no other employee has to go through this again and maybe cause the CBA to be changed to be fair for employees who are falsely accused there - I am not the only one who was railroaded out of there because of this horrible supervisor - and, of course, so we can sue for discrimination and sexual harassment, which is how this thing all started: Massi's new supervisor hit on him big-time, he rejected her, she retaliated by treating him like shit and discriminating against him and railroaded him and another employee who supported Massi and had been there 10 years out of there (she is elsewhere at the college since she had a longer and flawless record of good job but not before the supervisor accused her falsely of stealing!). We have lawyers interested in that but somehow none of them were all that up on the writ procedure).Do we need to make copies of everything and submit it to the court? If so, must we include any evidence from the three days of hearing, which includes a complete recording of all witnesses?

4. Before the 3-day hearing last summer, the College had phased out Massi's position so, really, it seems that they could have just laid him off and not wasted everyone's time and money and no one would have to go through this and his name would not have been tarnished. In the paperwork we received today, the other side states that, acc.to the CBA, "the requirement is that the District terminate classified employees such as Massi for cause". I googled this and it seems they are not restricted from laying classified ee's off.
Could they have just laid him off instead of going through all of this since the position was phased out, even though they had already started the termination for cause? I need to know this because we may use it as an argument.

thank you in advance. i look forward to your response, anja
Submitted: 1 year ago.
Category: California Employment Law
Expert:  Joseph replied 1 year ago.
Hello and welcome to JustAnswer.

I'm sorry to hear about your situation and hope I can help.

Is your fiance alleging that he was not terminated for cause? What was the reason given for his termination and what is he alleging was the actual reason for his termination?

If your fiance is unionized, why is he not getting any assistance from his union representative in this claim?

Unfortunately, even if the hearing were biased, he will not be successful on appeal unless he is able to demonstrate that he was not terminated for cause.

Finally, the reason why the employer would have chosen to terminate him for cause would be to avoid having to pay his unemployment benefits, and unfortunately, that wouldn't affect the hearing at all.

Customer: replied 1 year ago.

Joseph - you did not answer even one of my questions!


 


Massi was terminated for cause. We can show that the hearing was biased and unfair, that the "judge" in the hearing abused his discretion on mulitple occasions and that they did not prove, even by 51%, that Massi ACTUALLY


committed what he is accused of. Are you saying that THAT is not enough and that we need to prove some other "real" reason he was terminated in order for the judge to overturn the hearing decision?The real reason is actually a vendetta by his supervisor, a woman scorned ( more complicated than that...)


 


Massi is no longer an employee so the union lawyer can not help with this. He did have a union lawyer representing him at the hearing last summer which took place on campus with the "judge" being a college trustee who is friends with the supervisor and her cohort!, one of the reasons the hearing was biased.His union lawyer called it a "kangaroo court" and said that in a real court, there is no way the college would win, hence the CBA needing some adjustments...


 


The college did not challenge Massi's unemployment claim (surprisingly), so he got unemployment pay - that is not even an issue.However, that really begs the question :


Since Massi's position (as chef for the child care center) has been outsourced and no longer exists as of last spring semester, why not just lay him off and avoid sullying his name and reputation and wasting everyone's time and money? Our answer is because Monique (the slutty supervisor) and the College reps-HR dean who is her friend - just had to be right and because Monique wanted to make his life miserable.


We have a few witnesses and 2 of them are parents that Monique harassed as well. We are not crazy....


 


Please answer the below simplified questions:


 


1. I am not an attorney but Massi's English and heavy accent makes it prohibitive for him to represent himself. What do we need to do so I can do all the talking for him?


2. We did not know to verify the writ we submitted. How do we fix that?


3. The other side threatened to get us to pay their legal costs if we lose. Since this is his right, can they do that? What is the likelyhood of a judge ordering Massi to pay their costs?

Expert:  Joseph replied 1 year ago.
Hello Anja,

Sorry, I didn't answer any of your questions initially because I needed additional information from you before I proceed.

1. The court will provide your fiance with an interpreter for the court hearing, so it would not be necessary for you to do the taking for him. Unfortunately, the person doing the interpreting needs to be court certified so there is no way that a court would allow you to speak for him, since it is his termination that is at issue.

2. Based on your answer, it seems that your fiance did not actually complete a verification petition for a writ of mandate, but just completed the writ of mandate itself. The verification petition is a separate legal document that needs to be submitted to support the writ of mandate. It generally states the allegations and the parties, and a prayer for relief (which would be that your husband be reinstated to his position and any additional relief you request).

Here is an example:

http://www.sacbee.com/static/weblogs/the_state_worker/090128%20CDF%20furlough%20lawsuit.pdf


It could be that you did complete something that would qualify as a verified petition, but did not appropriately title it.

3. No, it is extremely rare for a party to be awarded their legal costs in an appeal, but it can occur due to the filing of a 'frivilous' appeal. I'm uncertain what you would want to get out of the appeal, if his position was eliminated already. Does he want to be reinstated to his prior position? Is he requesting back wages for wrongful termination or other reasons?

Finally, he should also definitely file a complaint with the Department of Fair Employment and Housing for sexual harassment, retaliation, and discrimination, which he can do using the instructions available online here;

http://www.dfeh.ca.gov/Complaints_eCompProc.htm
Joseph, Lawyer
Satisfied Customers: 4864
Experience: Extensive experience representing employees and management
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Customer: replied 1 year ago.

hi again, i appreciate your last response.


 


Initially,over a year ago, Massi wanted to sue his supervisor and college for sexual harassment, discrimination and defamation. We had 3 attys interested but all said "wait and call back when you are fired' so we could show more of a loss. We let them know after the final hearing decision and it took both of them 2 months to get back to us and tell us "you have to overturn the decision by writ of mandate and only when it gets overturned can you sue". These are both seasoned employment/discrimination attorneys. We were referred to another 2 to do the writ but even though both knew about the writ, neither had worked on one like this because it so completely rare and since it couldn't be done on consignment and it usually involves laypeople like us who can't afford an atty to do this process, people usually stop fighting at this point. So, you being a 5th attorney who is a bit confused by this is no surprise.


 


Massi is from Italy and won't give up the fight. To get an Italian interpreter is improbable. Anyway, his English IS really good, good enough for what he does (chef and furniture restoration) but his accent is heavy and even if he was a native speaker, he would want me to speak for him since he is not the greatest speaker : he gets impassioned and goes off on tangents easily and overexplains too much and can be confusing. He would get eaten up by the lamest of lawyers.


 


1. Can he give me Power of Attorney of some sort so I can speak for him? If not, how do I become court certified? It is not fair otherwise - we can't afford a lawyer and he is not good at being clear.


 


Verification : Luckily, both before and after the hearing decision, his union lawyer wrote up a legal opinion in lawyer speak that stated all the reasons why this hearing was unfair. I basically copied it and that is what I submitted but I did not make the statement that goes at the end before Massi signs attesting that "all the foregoing is true and correct, perjury, blah blah blah."


 


2. Can I just add that true and correct statement and resubmit?


 


We dealt with the DFEH a long time ago, when the harassment and discrimination was actually happening. Pretty much lazy, uncaring people one who did not speak English well enough to do her job, maybe b/c they are both gov't agencies...all the attys we were talking to said they have rarely seen the DFEH actually go out and do an investigation and never when it is a public entity like the college. They sound good on paper but it is another case of not really helping out regular folks...


3. I asked this the first time and forgot to ask again: the other side said that since we didn't ask for the administrative record, the court should deny the petition. Can you explain what that means and what I can do about it? If it means that we didn't submit all the evidence (which we did not since the college has it all already), do I just make copies of everything and submit to the court and if so, do i include evidence from the hearing as well? Or do we just have to present each reason for termination and show how they did not prove Massi committed those acts (which I thought we were doing at the hearing)?


 


thanks, anja

Expert:  Joseph replied 1 year ago.
1. There is really no way of getting around this. He needs to speak for himself in court, or have a court certified interpreter speak for him. You need to take extensive courses in order to be certified by the court, so this is not going to be something that you could do prior to the hearing. Again, court interpreters are provided free of charge, and there should be one who speak Italian, although it may take longer to get one. This seems to further complicate things, since he needs to be representing himself in court, and could not have you represent him even if you did have power of attorney.

2. Yes, that is the verification that you need in order for it to be acceted by the court. That is pretty much standard for most legal documents that require some factual allegation.

3. The argument is based on your need to exhaust all aministrative appeals before filing with the court. If there were an internal appeals process, it would be necessary to go through that first before filing with the court, or your petition could be rejected for failing to exhaust the administrative appeals process. I really don't see any reason why it's necessary for you to request the administrative record, and you'd have to give me the opposing counsel's argument before I can give you any information regarding this.

If you have evidence that supports your claims, you need to correctly submit that to the court, by filing a statement of facts in support of the writ, which would need to be signed by your fiance. Every piece of evidence that is being used would need to be in reference to a statement in the statement of facts, and be attached accordingly (either by numbered or lettered attachments). The court will not just accept copies of everything taht you have, since the court will only consider evidence that is properly introducted in court.

This would be the reason why an attorney would be really beneficial for you to have in this proceeding, and why I was wondering what your objective is, since if there is none other than 'clearing his reputation' this would not be the way to go about obtaining that objective. While some judges give 'pro se' parties some leniency, they are also generally intolerant of 'pro se' parties bringing forward cases that really need to be represented by attornies.
Customer: replied 1 year ago.

thank you for your reply. can you be more clear about: the other side said that since we didn't ask for the administrative record, the court should deny the petition.you answered you would need opposing counsel's argument about this, so below is exactly what they submitted:


 


PETITIONER DID NOT VERIFY HIS PETITION AND HAS NOT REQUESTED THE ADMINISTRATIVE RECORD OF THE HEARING, THEREFORE THERE IS NO EVIDENTIARY BASIS FOR THE COURT TO RULE IN PETITIONER'S FAVOR


 


.....Further, the Star Motor Imports, Inc. case stated, in dismissing petitioner's petition, "A valid petition for mandate and such exhibits as may be referenced or incorporated therein will ordinarily state facts, verified as required by Code of Civil Procedure section 1086..." and when "...the application is made to a reviewing court unequipped for a testimonial hearing, the controversy (except on rare occasions) will necessarily be resolved upon the parties verified papers contained in evidence which is 'positive,direct and not based upon hearsay'."(Id.)


In view of the fact that Petitioner has failed to verify his Petition and has failed to request preparation of the administrative record, the Court cannot possibly proceed upon the Petition in making a decision based upon its review of the facts leading to Petitioner's termination. Very simply, there are no facts for the Court to review. Therefore, the writ petition should be dismissed and judgement should be entered in favor of Respondent.


--------------------------------- ---------------------------------- -----------------------


 


We have the verification thing covered but as to the administrative record, what do we do? I think it means we must present all the evidence we have to prove in a legal document to the court and opposing counsel (we thought we just had to bring it and present it to the Judge at the hearing.) Am I correct or is there something other than that that we must do?


 


thank you. anja


Customer: replied 1 year ago.

thank you for your reply. can you be more clear about: the other side said that since we didn't ask for the administrative record, the court should deny the petition.you answered you would need opposing counsel's argument about this, so below is exactly what they submitted:


 


 


 


PETITIONER DID NOT VERIFY HIS PETITION AND HAS NOT REQUESTED THE ADMINISTRATIVE RECORD OF THE HEARING, THEREFORE THERE IS NO EVIDENTIARY BASIS FOR THE COURT TO RULE IN PETITIONER'S FAVOR


 


 


 


.....Further, the Star Motor Imports, Inc. case stated, in dismissing petitioner's petition, "A valid petition for mandate and such exhibits as may be referenced or incorporated therein will ordinarily state facts, verified as required by Code of Civil Procedure section 1086..." and when "...the application is made to a reviewing court unequipped for a testimonial hearing, the controversy (except on rare occasions) will necessarily be resolved upon the parties verified papers contained in evidence which is 'positive,direct and not based upon hearsay'."(Id.)


 


In view of the fact that Petitioner has failed to verify his Petition and has failed to request preparation of the administrative record, the Court cannot possibly proceed upon the Petition in making a decision based upon its review of the facts leading to Petitioner's termination. Very simply, there are no facts for the Court to review. Therefore, the writ petition should be dismissed and judgement should be entered in favor of Respondent.


 


--------------------------------- ---------------------------------- -----------------------


 


 


 


We have the verification thing covered but as to the administrative record, what do we do? I think it means we must present all the evidence we have to prove in a legal document to the court and opposing counsel (we thought we just had to bring it and present it to the Judge at the hearing.) Am I correct or is there something other than that that we must do?


 


 


 


thank you. anja

Customer: replied 1 year ago.
Relist: Incomplete answer.
Expert:  Joseph replied 1 year ago.
I didn't realize what administrative record they were referring to. Yes, it is necessary for you to request a copy of the administrative record to submit to the court as evidence, otherwise, the court would not have any evidence to consider, since what you are appealing is the ruling of the administrative board.

You would need to request a copy of the administrative record and submit it as evidence in order to have the petition accepted by the court, since, otherwise, as the opposing counsel stated, there is no evidence for the court to review.
Customer: replied 1 year ago.

thank you. a bit more clarification and i will finally tip you as you have helped quite a bit.


 


1. who do i request it from - the College or their counsel?


 


2. does it cost me anything?


 


3. do they send it to us and then we submit it to the court?


 


4. is there a standard form i can use or i just request it on pleading


paper?


 


5. can i just ask for "the entire administrative record pertaining to the


termination case and hearing between Napa Valley College and


Massi....." or must I outline everything like " please include all exhibits,


counsels' briefs, final decision..."?


 


 


6. how long do they have to supply this? (court date is on jan 23, not


much time...)


 


thanks, anja


 

Customer: replied 1 year ago.

oh yeah, i send it and then think of something....


 


we have all the paperwork and evidence except maybe 3 exhibits but we are not going to refer to anything needing those exhibits plus they show things that are not in dispute by either side.


given that, cannot i make copies of all that and submit that to the court instead of requesting the admin record?


 


thanks, anja


 

Expert:  Joseph replied 1 year ago.
1. You should request it from the college. Although you could do so informally, it will probably be better to do a proper subpoena, since they seem unlikely to comply with an informal request. You'd do this through a subpoena duces tecum, available here:

http://www.courts.ca.gov/forms.htm?filter=SUB

2. No, it shouldn't cost you anything, although they may request copying fees.

3. They'd send it to you directly, not the court.

4. See 1, above.

5. You can request the entire record, you don't need to limit it to certain exhibits.

6. Unfortunately, the typical amount of time is 30 days, but you can request that the information be brought to court on the day of the hearing, although that is unlikely to assist you that much, since the judge would not have any time to review the record (this would also be the case if you subpoena the information immediately before the hearing).

It's quite possible that your motion will be denied due to procedural errors, but the judge may give you leave to amend it, since you can rectify the errors that you've made.
Customer: replied 1 year ago.

did you get my last add-on question? i sent it after the last one. it is:


 


we have the entire record, all the exhibits except maybe 3 but they cover stuff that is not in dispute by either side. can we make copies of what we have and submit it to the court instead or at least in the meantime and then add what is missing when we get it?

Customer: replied 1 year ago.
Relist: Incomplete answer.
Expert:  Joseph replied 1 year ago.
Yes, you can do that, as long it can be verified as the administrative record. However, it's important to note that you need to give the courts facts to consider.

If you didn't submit any evidence in support of the petition, it's likely to be denied. You would need to submit a 'statement of facts' in support of the petition.
Customer: replied 1 year ago.

thank you, joseph. i added a $10 tip for you.


 


now a coupla more easy ones:


 


1.Since "the board's decision must be given deference and is presumed correct" as they say, can my 'statement of facts' be my version with explanation, arguments and evidence using testimony and evidence already entered? Can I add it to the now-verified writ and resubmit it all together or can i just answer their opposition to writ and put the "statement of facts' in there when i answer that part (where they say the Court should throw it out because no supporting arguments or evidence has been submitted with our claims)?


.
2. The 'right to sue' letter we got from the DFEH is dtd Mar 15 of last year so we must file the lawsuit for damages for discriminitation, sex.har,etc. by Mar.15 this year. not much time. IF i win (which i understand is less than 10%chance,even w/a lawyer)but this writ thing takes too long, how can we extend his time to be able to sue?



thanks.

Expert:  Joseph replied 1 year ago.
1. No, the statement needs to be phrased objectively, and there should be evidentiary support for the statements (for which you can provide support) made in the statement of facts.

2. You cannot extend te time to sue. You will have to file suit by that date. This cause of action is unrelated to your finance's claims under the Fair Employment and Housing Act. If he doesn't file suit within a year of getting his right to sue notice, he'll be beyond the statute of limitations.
Customer: replied 1 year ago.

Hi Joseph,


 


Our petition for writ was dropped by the judge due to us not filing the it within the 90-day deadline. Now the Respondent is trying to have us pay their legal costs and "any other reasonable fees"", whatever that means.


 


Here are my questions but if you want more details and information, like exact wording from the Respondent and judge, keep reading after the question section:


 


 


My questions:


 


1. Since the hearing was dropped (everything took less than one minute in front of the judge, literally), do I have to pay the Respondent's legal fees? or What is the likelihood of a judge making us pay, especially after all we went through,which the judge could easily see if she read just two pages of our proof of the hearing being unfair and unlawful, etc


- The document they sent us today does not have the judge's signature on it, only her name and a space for her to sign.


- They did not submit an itemized bill for any legal work done.


 


2. Are we expected to file a demurrer or opposition or argument to this? Is there anything we must, or should, file?


 


3. If the judge orders us to pay, do we have the right to see an itemized bill?


 


4. We did this in pro per because we have no money. How are we expected to pay?


 


5. We do have proof, solid proof, that many allegations originally brought against Massi by his supervisor were fabricated. Can he still personally sue his ex-supervisor and the Human Resources Dean who supported everything without investigating, basically discriminated against him and did not do her job, which harmed is as well?


 


6. What about suing the Board Member who acted as "judge" and was the Hearing Officer? He was not only friends with the HR Dean, she was a material witness, too AND he allowed her to sit in all 3 days of the hearing before she testified (can you believe that???)?


 


Here is the detailed story with exact words from Respondent asking for $ and judge's tentative decision:


 


Well, we showed up on Wednesday and the judge granted the College's demurrer to the petition for writ because we had filed the petition 11 days late. That happened because all we wanted to do was sue them for wrongful termination and, according to the "right to sue" letter we have from the DFEH, we had til March 15 of this year. Not only did the College send the final decision to the administrative hearing to us late back in August, it took 3 labor law lawyers who were interested in the civil case to even figure out that, before we could sue the College for discrimination and sexual harassment= wrongful termination, we had to have the hearing decision overturned because they are a public entity, so that decision caused all the College's allegations to become fact, in the eyes of the law.



If they were a regular company, we could have just sued them when he was terminated, or even before but this is a whole different animal.. We had submitted an argument as to why we should be granted an extension of deadline but the judge is a stickler for deadlines and denied us.


 


The College (respondent) had filed in their paperwork with their demurrer to the Petition that our lawsuit is frivolous, etc. and to dismiss the the case since we were late filing the Petition for writ. WE RECEIVED THIS TODAY,THE DAY THEY SENT IT IS JANUARY 24 (we were in front of judge January 23) Here is the exact wording:


 


"The Court hereby orders that judgment be entered in favor of Respondent Napa Valley Community College District, erroneously sued herein as Napa Valley Community College (herein after "Respondent") and against Petitioner Massimiliano Fantucci (herein after "Petitioner"). Judgment is entered based upon the Order attached hereto and incorporated by reference herein.


Pursuant to this judgment, Respondent is entitled to recover all costs recoverable pursuant to Code of Civil Procedure section 1033.5 and in accordance with the memorandum of costs filed by Respondent."


 


In their original demurrer, Respondent had asked for us to have the court drop the case and order us to pay legal fees. The Judge's tentative decision is:


 


"TENTATIVE RULING: Respondent's demurrer to the petition for writ of mandate is SUSTAINED, without leave to amend. It is apparent from the documents provided by respondent, of which this court takes judicial notice, that the petition was not timely filed pursuant to Code of Civil Procedure section 1094.6, which requires the petition to be filed within 90 days of the date the decision is final. The decision in this case was final on the date it was mailed to petitioner, August 10, 2012. The petition was filed on November 19, 2012, 101 days later. Even calculating the days as urged in Petitioner's opposition, i.e. that the decision was final on August 16, 2012, the petition was still filed 95 days later. Contrary to Petitioner's assertion that five additional days should be added because the dicision was mailed, section 1094.6(b) specifically provides that CCP section 1013(a) does not apply to extend the time for filing a petition for writ of mandate. Because the Petition was filed beyond the statute of limitations, this Court is without jurisdiction to consider it.


 


2. PETITION FOR WRIT OF MANDATE


TENTATIVE RULING: In light of the ruling sustaining the demurrer, without leave to amend for lack of jurisdiction, the hearing on the Petition for Writ of Mandate is dropped, as moot.


 


 


 


 


 

Expert:  Joseph replied 1 year ago.
Hello Anjanette,

Since this is a new questions, please ask them in a separate question. You can address them to me by putting "To Joseph" at the beginning or requesting me directly.

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