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Patrick, Esq.
Patrick, Esq., Lawyer
Category: California Employment Law
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Experience:  Significant experience in all areas of employment law.
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Employment contract and compensation at termination

Customer Question

Attachment: 2011-11-01_225953_michel_and_palmyre_louvain.docx

I am a real estate agent with 17 years of experience. I just recently lost a job where I was VP - i had worked for them for 6 years. I was contacted by a gentleman that I had worked with for two years to help manage his 100 units. We came to an agreement for a three month contract. We outlined the job duties in a signed document but the duration was verbally agreed upon - but there are witnesses. After two months, the gentleman and his wife showed up at my office and told me that it was not working out. They handed me check for approx. 40 hours of work. For the pay period i had worked more than 8 hours a day for 9 days straight. I didn't notice this until they left. I mentioned that we had an agreement for 90 days and they said, well we have already contracted with a company. I had given up another job because this owner expected me to be available 24 hours a day 7 days a week and would get upset if I didn't answer every phone call immediately and every email immediately. In fact, one sunday morning he called me at 8 am and left a message to call. I listed to the message and determined that it was not an emergency and went back to sleep and called the client back at 9:30 when I woke up. He was livid and asked why i didn't answer the phone and call him back as soon as he called. I told him what had happened and he was still upset because "what if". Our contract didn't outline 24 hours a day 7 days a week. I want the client to fulfill his part of the obligation and pay me a full last paycheck. I also want him to fulfill his contract and pay me for the last month. I have put this in writing and given them 7 days to pay before I file in small claims. Do I have a leg to stand on?


My letter stated that i was asking for actual time worked at $1924 and $3847 for fulfillment of the last month.  I did not include all of the money that i spent on running the business such as postage and mailing, supplys, admin work entering all of the tenant info into a computer program that they had and gas for traveling approx 50 miles a day.  Nor did I ask for over time for the extra work that was expected of me - the owner told me that this was not a 9-5 job and expected me to answer his calls very late and very early in the morning.  I worked 7 days a week at his demand.  I wanted to maintain the job so I thought it was a good investment of time. 

Submitted: 5 years ago.
Category: California Employment Law
Expert:  Patrick, Esq. replied 5 years ago.
Hello and thank you for entrusting me to answer your question.

A valid claim may very well exist on the described facts, however, you would need to be able to prove that you entered into an oral contract for a set period of time. This shouldn't be a problem because you say that there were witnesses. You will need statements from them.

You likely won't be able to recover the hours you worked in excess of a particular number because it does not sound like your contract provided for pay on an hourly basis.

Damages can be calculated in an number of ways. What you gave up (i.e. the contract you missed out on), the difference in pay between your replacement contract and what you were going to be paid during the final month of the breached contract, the costs you incurred in finding a replacement contract with another client. However, you do have an obligation to mitigate your own damages, so you can't just sit and expect to be paid for a final month of work that you didn't actually do, typically.

Bear in mind that the other side can argue that you didn't perform a material term of the contract and that they were entitled to back out of it. You will likely have to show that you lived up to your side of the deal.

Bear in mind that none of the above constitutes legal advice and that no attorney client relationship is formed between us. Good luck.

If my answer has been helpful to you, please click on the GREEN ACCEPT button directly above. I will not get credit for assisting you or receive payment for my work unless you do this. Your question will not close after you click "accept," and you will still be able to ask follow-up questions if necessary.
The only facts I know about your situation are the ones that you tell me, so please try to be specific and bear in mind that, occasionally, miscommunications will occur. I will do everything I can to clarify my answer if I have misunderstood your question. Also bear in mind that the law does not always read how we think it should. I ask that you be understanding if an opinion I have provided is not consistent with what you wanted to hear.
Finally, the information that I have provided is not legal advice. I am not acting as your attorney and my answer does not establish an attorney-client relationship between us. I encourage you to consult with a local attorney in regard to legal matters.

Expert:  Patrick, Esq. replied 5 years ago.
If I have not adequately answered your question, I am happy to provide additional clarification. Otherwise, I would greatly appreciate it if you would click "Accept" so that I get paid for my time. Thanks so much.
Customer: replied 5 years ago.
I feel like the answer was a wordy way of saying maybe. I know you can guarantee your answer but I am looking for supporting references, is there civil code that I can reference or is this more based on prior cases. I am also wondering if I should take all of this to a small claims court or if I should try to take the breach of contract to the small claims court and file with the California division of labor standards enforcement. They wrote me a check for $1000 that noted in the memo section "final payment for all claims and expenses". Since they shorted me on my final pay, I need that money to pay my rent and expenses, it appears to be a falsehood that writing such verbiage in the memo section of a check releases the debtor of all obligation. If that was the case, couldn't someone write that on a car loan payment or a mortgage payment?
Expert:  Patrick, Esq. replied 5 years ago.

Yours is a matter that would probably be more appropriate for small claims court. The DLSE is typically concerned with violations of employers--not breaches of contract between private contractors.


I do apologize that I can't provide you with a more concrete answer. As you'll find quickly in the law, things are, unfortunately, rarely concrete! Often times the issue boils down to a "question of fact," which a jury must decide--not a judge or attorney.


For some further reading as to what constitutes a breach of contract and a valid excuse for non-performance on a contract, I suggest visiting this link:


In regard to conditioning the cashing of a check on full discharge of an amount owed,California Commercial Code § 3311 states that a debtor can claim a debt has been discharged by the creditor if the debtor can prove that there was an honest dispute as to the amount owed, and that he, in good faith, tendered a check indicating that is was a full and final payment in full satisfaction of the debt, and that the creditor accepted the check. Once he or she proves these elements, the debt is discharged and the creditor is thereafter barred from attempting a recovery of the remaining sums still due.


Section 3311 notes two exception to the rule. First, if the creditor is an organization and proves that within a reasonable time before the tender by the debtor, it sent a notice to the debtor that any and all instruments or communications concerning the debt are to be sent to a designated person or office, and the instrument or accompanying communication was not received by that designated person or place, the debt will not be discharged. Secondly, if the creditor proves that within 90 days after payment of the instrument, the claimant tendered repayment of the amount of the instrument to the debtor, the debt will not be discharged.


Note that it is presently unclear under California law whether the party cashing the check can cancel the effect of the "payment in full" language by crossing it out.


I hope that this helps, and again, please kindly press "Accept" so that I get compensated for my time. Thanks a lot.

Expert:  Patrick, Esq. replied 5 years ago.
If my answer has been deficient in some way, please allow me an opportunity to further clarify. Thanks.