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Joseph
Joseph, Lawyer
Category: California Employment Law
Satisfied Customers: 5299
Experience:  Extensive experience representing employees and management
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Hello...first, please assure me that our discussions will be

Customer Question

Hello...first, please assure me that our discussions will be kept private and will be held in the strictest confidentially.

I own a small investment advisory practice in Ca. (1 employee at the time of this incident) I let go of an employee after three months of lack of performance and she has come back with a lawsuit that claims i fired her since she is a single mom and I sexually harassed her...these are completely spurious claims.

My attorney and I have been through four depositions, we are prepping for a mediation this week and are strategizing about how to position ourselves. While I have suggested a plan that we threaten to go all the way if they don't accept a "walk away" with the ultimate threat to go after the equity in her home with no mortgage, my attorney disagrees.

She says: "I'm going to be straightforward here -- Her lawyer will not accept a "walk away" settlement. Why? Because the claims that we could assert against her are not likely to be perceived as "valuable" enough to achieve that kind of settlement.

Why not? Let's look at what we could we sue her for: (1) Fraud, which we have discussed before; (2) Defamation of you; and (3) violation of the confidentiality provision of her agreement.

None of these claims, were we to bring them and prevail on them, would allow us to recover the "big ticket" items: your attorneys' fees or the value of your time. If we proved fraud, we would be very unlikely to recover your "opportunity cost" losses, but could recover the out-of-pocket costs you incurred in having to find Anderson's replacement."

My questions are:
1: do you agree that we would would not be able to recover big ticket items should we prevail?

2. Are there exceptions to this?

3. Are there any other potential claims that we could make in a case like this?

4. Might any of these claims allow us to recover big ticket items?

Thank you,

Geoff
Submitted: 3 years ago.
Category: California Employment Law
Expert:  Joseph replied 3 years ago.
Hello Geoff,

Questions to JustAnswer experts (and answers) are not confidential, since they are not protected by the attorney-client privilege, since there is no attorney-client relationship that is being formed.

If you do want to proceed, please acknowledge that you understand that this communication is not confidential and/or protected by the attorney client privilege.

That said, I will be happy to answer your questions, and once we are complete with the session I can request for customer service to make the question and answer session private (so it will no longer be public on the internet).

Please let me know how you wish to proceed.

Thanks,

Joseph

Customer: replied 3 years ago.
Yes, I do not want this to be in any way public on the Internet....with this in mind, will our discussions remain private between you and me only?

If so, please proceed in answering the questions.

Thx Geoff
Expert:  Joseph replied 3 years ago.
I can set the conversation to private after we are done. I really can't tell you whether anyone at JustAnswer may look over the conversation once it becomes private or not, but it should be private to that point.

Make sure to not state anything that could be used to identify you and redact any identifying information.

Can you tell me what the basis for fraud and defamation would be? Are you alleging this based on the law suit alone, or has your former employee made statements to others about your alleged conduct toward her?

If she made defamatory statements to third parties, can you prove that your reputation was damaged and that you lost income as a result?

Also, was there a liquidated damages provision regarding the confidentiality of the agreement between you and her, and what type of agreement was this? An employment agreement or a settlement agreement of some type, etc.?
Customer: replied 3 years ago.
Relative to fraud, from the lawsuit alone.....my attorney says the following on this point: "Fraud is notoriously difficult to prove, since the claim turns on whether someone knowingly, intentionally intended to deceive. We would have to show (with evidence) that Anderson made misrepresentations of fact; knew the representations were false when she made them; intended to deceive you; and that you reasonably relied on those misrepresentations and suffered damage as a result. I think most people would believe that Anderson accepted the job in good faith, believing that she could perform the duties you laid out to her, but that she simply failed. I do not believe that most people would think that she meant to "trick" you into hiring her."


Relative to defamatory statements her negative comments were made to former colleagues with whom she knew I had strained relations. So her comments have not yet defamed me in the the eyes of the public nor has my income been effected as a result of this excel for the lost focus and time and $ expended to date.

Relative to the damages provision, this was an employment agreement and I have no memory if there was a specific provision for damages... Could check on this tomorrow.
Expert:  Joseph replied 3 years ago.
Hello Geoff,

I’m afraid that I have to agree with your attorney, as none of your stated causes of action against your former employee are strong, and even if you were to succeed on them (which is doubtful), you would be very limited in recovery.

1) Fraud

I do believe your attorney is right on this point. It would be nearly impossible to prove that she set out to trick you into hiring her and had no intention of ever performing the job and was trying to sue you all along. Absent some email or recording of her stating this, you would really not be able to prove fraud here, as you would need to prove that mindset. As most employees, she likely thought she could do the job and only realized later that she couldn't.


2) Defamation
This is also an extremely difficult cause of action to prove, as you need to prove that her statements were false. If it is merely her word against yours regarding sexual harassment, etc., it is nearly impossible to prove that her statements were false. Also, you need to have suffered financial damages as a result to obtain a substantial monetary recovery against her, which it doesn’t seem you have proven here.

3) Breach of Confidentiality Provision
Again, you’d need to demonstrate that there were some damages due to this breach or that you you had a liquidated damages provision in the contract that entitles you to money. If not, this, as your other causes of action, are pretty much dead in the water, I’m afaid.

So in direct answer to your questions:

1: do you agree that we would would not be able to recover big ticket items should we prevail?

Yes, I agree that you do not have a good cause of action for big ticket itsems, and that even if you were to prevail (which is very unlikely on the first two causes of action), you would not be entitled to any substantial recovery, or possibly, not any at all.

2. Are there exceptions to this?

No, no exceptions I can see to this.

3. Are there any other potential claims that we could make in a case like this?

Not that I see so far, but feel free to relay anymore details that you believe would help me in pinpointing any other potential causes of action.

4. Might any of these claims allow us to recover big ticket items?

Again, I’m afraid not.

I realize the above information is not what you wanted to hear and I sincerely XXXXX XXXXX had better news to give you, but I hope you appreciate an honest and direct answer to your question. It would be unprofessional of me and unfair to you to provide you with anything less.

I hope the above information is helpful.

Thanks and best of luck!
Expert:  Joseph replied 3 years ago.
Hello Geoff,

Please let me know if you have any follow up or clarifying questions regarding any of the above information.

If not please remember to rate my answerpositively so I get credit for my work!

Thanks again and best of luck!
Expert:  Joseph replied 3 years ago.
Hello Geoff,

Please let me know if you have any follow up or clarifying questions.

If not please remember to rate my answer positively so I get credit for my work.

Thanks and best of luck!

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