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DayCare sues for payment for not providing 30 days written notice

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S

Samiq2003

Guest
What is the name of your state? Ca

Claim is for 30 days service on the basis that we didn't provide 30 days written notice of intent to remove child. Contract is claimed reasonable to allow company time to market for replacement children.

How best to defend based on the following reasons (or otherwise)

Facility was sold to us promising specific levels of security in terms of access/exit to the building; separation of children based upon age groups - walking/crawling abilities; two "teachers" present at all times in each room; separate quiet sleeping areas to ensure children properly rested.
A copy of the contract and a parent handbook were never provided despite frequent requests. We do have a copy of an acknowledgement which we were to sign and return stating that we had received these documents - it is unsigned.
The service at this place was horrible. There was a computer that was to monitor access/exit to the building that never worked. Several occassion I came and went unchallenged into and out of the facility. On MANY occassions we would have to stay with our child waiting for the second staff member to the room to show up. The room was not divided as promised. Consistently 'walkers' with shoes on were tromping around the same room as our non-walking 5 month old. The sleeping area was never quiet when we would go by. Our child was continually suffering from lack of sleep and was continually sick.
The director of the facility was fired. The staff were in dissaray and they bring this suit 15 months after we left!
Under these circumstances is it reasonable for them to expect payment for services which they have not rendered?

What are our chances in successfully defending ourselves?
 


S

Samiq2003

Guest
approximately 3 months. we left her there long enough to determine if our reactions were over concern of new parents and for them to correct the deviances to what had been promised. Several calls were placed during this time to their corporate office and face to face meetings were held with the "primary" teacher and facility director - before they let her go
 

JETX

Senior Member
"Under these circumstances is it reasonable for them to expect payment for services which they have not rendered?"
*** It IS reasonable if the agreement you signed required that you provide a 30 day notice to terminate and if it does not provide a cancellation for the reasons you describe.

"What are our chances in successfully defending ourselves?"
*** How much legal experience do you have?
 
S

Samiq2003

Guest
LLB Business Law with honors. but that was a lot of pub time.
Are they really entitled to their 30 day payment if the material breach of contract was caused by them. In other words wasn't the contract already broken prior to their invocation of their 30 day notice clause?
 

I AM ALWAYS LIABLE

Senior Member
Samiq2003 said:
LLB Business Law with honors. but that was a lot of pub time.
Are they really entitled to their 30 day payment if the material breach of contract was caused by them. In other words wasn't the contract already broken prior to their invocation of their 30 day notice clause?

My response:

By continuing to use their services for three months, you "waived" any breach they may have caused. None of these items you list occurred overnight.

Further, you never stated that you placed them on "Notice" of their alleged breach of the contract; in point of fact, you never placed them on Notice that you were leaving.

You'll lose the lawsuit.

IAAL
 
S

Samiq2003

Guest
okay. I'm learning. thank you.
Wording was perhaps not clear enough. Repeated demands were made to cure the breach throughout the time there. And I just checked with my wife. Our child was there for ONE month. We never wrote a second check. Given this length of time and continual demands can they successully arque that we provided implied/express consent to their breach by having utilized the lesser service provided that we had pre-paid for.

Does this much shorter time period improve our chances?
 

I AM ALWAYS LIABLE

Senior Member
Samiq2003 said:
okay. I'm learning. thank you.
Wording was perhaps not clear enough. Repeated demands were made to cure the breach throughout the time there. And I just checked with my wife. Our child was there for ONE month. We never wrote a second check. Given this length of time and continual demands can they successully arque that we provided implied/express consent to their breach by having utilized the lesser service provided that we had pre-paid for.

Does this much shorter time period improve our chances?

My response:

Your "demands" were never in writing. However, your contract WAS in writing. You can't prove your "demands" - - but they can prove the contract provision.

Basically, you're screwed.

IAAL
 
S

Samiq2003

Guest
Even tho' we never received copies of these written agreements? The ONLY document we received was the one we didn't sign and that would be the one acknowledging receipt of a copy of the parent handbook.
This they provided AFTER we left and nicely highlighted the 30 day notice policy.
The original contract I am told was a 12 page document. Without having been provided a copy would a small claims judge judge it reasonable to be able to remember the inclusion of such a policy?

Yes. I know signatures are binding and all that but this is bunk! Yes they can prove we signed the contract. If this is a win for them the message is not good.
Basically it entitles them to 2 months money when their services fail to meet the standards which they are contracting to provide.
Shouldn't that be an unenforceable contract provision
 

JETX

Senior Member
Okay, lets try this one more time..... and very slowly.....
You have NO case.... and they do.
 
S

Samiq2003

Guest
Learn or Leave? How about Live and Learn.
We WON.
Slower this time. W....e W....O....N....!!!!

Hey I earned the right to say that :)
I simply wouldn't have won if the answers I got here had not made me get myself better prepared going in there. So thank you.
 

JETX

Senior Member
Isn't it incredible how many times a writer will respond with "We won" on an issue after they have been told that they have NO case or defense.

Its even more incredible when you take a REALISTIC look at the timeline....
This writer made the post at 11-20-2003 04:28 PM, claiming that they had been sued ("DayCare sues for payment"). There is NO urgency in the post or mention of when the hearing is set for. Yet, here it is, just 26 hours later and the writer is proclaiming "We won!". Yep, you won all right..... in your mind.

You can't even admit that you are wrong with the anonymity of the internet!!

But, who cares?? If they did give in to your whining (which I doubt) they did so purely as a PR move.... and not based on any legal requirement.
Bye!
:D
 
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S

Samiq2003

Guest
No interest in a slanging match with one of the boards 'experts'
I certainly have no desire to match conceitfulness or ego.
We won this afternoon in court. And I was simply trying to thank the guy who just decided to slam me. It was his comments that made me do more digging. Specifically Title 22, Division 12. Chapter 1 Sections 101218 and 101219. These sections require daycare provides among other things to provide parents with access to/copies of numerous documents including the contract which contained the clause that they were sueing under. This in conjunction with our short, 20 day presence at this facility and our claimed deficiencies in the performance of the contract won us the case.
I'm not sure where we were whining in this.
So the first lesson to the casual surfer here, looking for help is whining doesn't work. Got that loud and clear Jet. The second lesson is perhaps the helpers here are so used to seeing so much whining that they're just a tad myopic
 

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