[Enter Your Name and Address]
[Date]
[Enter Recipient’s Name and Address]
Re: RESPONSE TO SOLICITATION LETTER
Respectfully,
This letter serves as my response to your Solicitation Letter, which you sent on July XXX
1. The Defendants were sufficiently informed of the action
It is trite law that "`if the service is otherwise properly made, and the person served is aware
that he is the person named as a defendant in the erroneous manner, jurisdiction is obtained.’"
XXX. . . it is shown that a person was served
with process in an action brought against him, the judgment will bind him, although he may
have been wrongly named, [¶] . . . There are cases of slight errors in spelling, which do not
destroy the virtual identity of name. . . . Such errors are disregarded entirely."
In the instant action, when I filed the suit, I mistakenly named the deceased Defendant
instead of his estate and I apparently got the name of the Trust wrong. However, service was
done on the right agent. The agent then forwarded the services to you. Your appearance and
reply to the action demonstrates knowledge and receipt of the matter. Because of the
response, I you have already acknowledged the service. As discussed in the aforementioned
law, the court already has jurisdiction over the case since the errors in the naming do not
destroy the identity of the intended Defendant(s). Besides, your agent duly effected the
service to you, upon which you issued your response. This shows that you are sufficiently
informed of the case.
2. In the event the Court finds that the service of process was improper, I am
entitled to an order to perfect service
Pro se litigants’ court submissions are to be construed liberally and held to less stringent
standards than submissions of lawyers. If the court can reasonably read the submissions, it
should do so despite failure to cite proper legal authority, confusion of legal theories, poor
syntax and sentence construction, or litigant’s unfamiliarity with rule requirements. Boag v.
MacDougall, 454 U.S. 364, 102 S.Ct. 700, 70 L.Ed.2d 551 (1982); Estelle v. Gamble, 429
U.S. 97, 106, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976)(quoting Conley v. Gibson, 355 U.S. 41,
45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957)); Haines v. Kerner, 404 U.S. 519, 92 S.Ct. 594, 30
L.Ed.2d 652 (1972); McDowell v. Delaware State Police, 88 F.3d 188, 189 (3rd Cir. 1996);
United States v. Day, 969 F.2d 39, 42 (3rd Cir. 1992)(holding pro se petition cannot be held
to same standard as pleadings drafted by attorneys); Then v. I.N.S., 58 F.Supp.2d 422, 429
(D.N.J. 1999).
It is also trite law that “[t]he Court may, in the furtherance of justice, and on any terms as
may be proper, allow a party to amend any pleading…” CCP § 473(a)(1); see also McKenney
v. Purepac Pharm Co. (2008) 167 Cal. App. 4 th 72, 78. “T[he] statutory provision giving the
courts the power to permit amendments in furtherance of justice has received a very liberal
interpretation by the courts of this state.” Klopstock v. Superior Ct. (1941) 17 Cal.2d 13, 19;
see also Nestle v. City of Santa Monica (1972) 6 Cal.3d 920, 939. Courts apply a policy of
great liberality in permitting amendments to the complaint at any stage of the proceedings up
to and including trial. See Mesler v. Bragg Management Co. (1985) 39 Cal.3d 290, 296-97.
In fact liberal amendment of pleadings has been the established policy of California since
1901. “That the trial courts are to liberally permit such amendments, at any stage of the
proceeding, has been established policy of this state since 1901.” Hirsa v. Superior Ct. (1981)
118 Cal.App.3d 486, 488-89.
The above jurisprudence from the courts shows that I am entitled to amend the pleadings and
to perfect service at any time. Therefore, in the event that the court finds that the service was
improper, I will move for, and be granted leave to amend the pleadings, to include the correct
parties in the suit.
3. My case is not time-barred
The statute of limitations for breach of a written contract under section 337(a) of the
California Code of Civil Procedure sets the time to file a lawsuit at four years. Further,
equitable tolling will not bar a claim if the plaintiff, despite reasonable care and diligent
efforts, did not discover the injury until after the limitations period had expired. “The
equitable tolling of statutes of limitations is a judicially-created, non-statutory doctrine. It is
‘designed to prevent unjust and technical forfeitures of the right to a trial on the merits when
the purpose of the statute of limitations – timely notice to the defendant of the plaintiff’s
claims – has been satisfied.’ Where applicable, the doctrine will ‘suspend or extend a statute
of limitations as necessary to ensure fundamental practicality and fairness.’” See McDonald
v. Antelope Valley Community College Dist. (2008) 45 Cal.4th 88, 99[84 Cal.Rptr.3d 734,
194 P.3d 1026].
“[T]he effect of equitable tolling is that the limitations period stops running during the tolling
event, and begins to run again only when the tolling event has concluded. As a consequence,
the tolled interval, no matter when it took place, is tacked onto the end of the limitations
period, thus extending the deadline for suit by the entire length of time during which the
tolling event previously occurred.”See Lantzy v. Centex Homes (2003) 31 Cal.4th 363, 370-
371 [2 Cal.Rptr.3d 655, 73P.3d 517].
I entered an employment agreement with the decedent. Four years have not yet lapsed since I
was wrongfully terminated, in breach of the employment agreement. You should also note
that my claims were equitably tolled. Notably, the trust took possession of Dean’s property
on [ENTER DATE]. That property which was solely owned by Dean could have and should
have been liquidated to pay the debtors. Daniela Trinh as the wife, manager of Soled, and as
the Trustee for the Trust knew this and knowingly disregarded the many debts and liabilities
of Dean Trinh and Soled so as to keep the property and full value of that asset in her own
control.
You should further note that I filed a creditor’s claim and an objection, and I appeared in the
probate court but despite my objections, the probate court ultimately said that allowing the
Trust to take possession and control of the property does not block my claims against the
property because they existed before the transfer.
4. I am entitled to recover from the decedent’s Estate
Under Probate Code section 9830, a personal representative is given broad powers to settle
any claims either against the estate. Accordingly, the representative must handle the
decedent’s debts and deal with creditors who have claims against the estate.
It is also not true that Soled Energy Inc. ceased its business operations. I was informed by
multiple sources that Daniela stepped in and took over the operations and was actively
managing and running Soled’s projects. State records show that she is the registered agent.
Project records show that she assumed the controlling position of Soled after Dean’s deaths.
Further, state and project records show her as the manager of Soled, and that she undertakes
decision making roles.
I also aver that Daniela has personal liability for my claims. Notably, she has ownership
interests in and to Soled. She was also the agent for service and took full charge and control
of the business as the senior and controlling manager position (full control) when Dean
passed. In that light, I assert that I am entitled to recover from the Estate.
5. I never received full settlement of my debts
Contrary to your averments, my settlement payment from the bonding company was
approximately 30% of my claim. Any settlement agreement involved (if any) was with the
bonding company alone and nobody else. There was a release that involved releasing the
bond and the bonding company only, but that was between the bonding companies and
others. Besides, I was not asked to sign that agreement. Accordingly, my case is for the
balance of my claim for approximately $45,000 (for unpaid wages), penalties and interest,
legal fees, expenses. I am also seeking damages for wrongful termination in the form of 30
days of pay, which based on the average number of hours that I worked in a day (9.3) at the
average hourly rate of $139 per hour hourly amounts to an additional $39,000. Accordingly, I
seek a total of $5,000 + $39,000 = $84,000 plus interest and plus possible additional penalties
(if any).
Further, your statement that I failed to file a timely claim is completely false. As already
discussed hereinabove, the complaint was served twice. Soled’s representatives including
Daniela were aware of my claim because they were a party to the matter. The representatives
are also aware of (and were involved in) my legal claim in the Trust matter over the property
that the Trust petitioned the court to allow for possession and ownership. You should also
note that the probate court stated that allowing the Trust to take possession and control of the
property does not block my claims against the property because they existed before the
transfer.
Conclusion
In light of the foregoing, I maintain that I have a valid case for wrongful termination and
unpaid wages. I shall oppose any dispositive motion you file, in my pursuit of the interest of
justice.
Sincerely,
_________________
[ENTER NAME]
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