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The burden to show no mitigation is defendant's

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It is the defendant's burden to affirmatively prove that your client has not mitigated their damages .The duty to mitigate is an affirmative defense. Defendant bears the burden of proof on the affirmative defenses at trial. When you face legal issues in your small business then don’t waste your time hire a small business lawyer who protects you.

In California, the burden of establishing an employee’s failure to mitigate rests with the employer, and, in the absence of other evidence, it is presumed that the employee has been damaged in the amount he or she would- have received but for the discharge. The measure of recovery by a wrongfully discharged employee is the amount of salary he or she would have received plus other bene- I fits, less the amount that the employer affirmatively proves the employee has earned or, with reasonable diligence, might have earned from other employment.

Other cases concur:

The general rule is that the measure of recovery by a wrongfully discharged employee is the amount of salary agreed upon for the period of service, less the amount which the employer affirmatively proves the employee has earned or with reasonable effort might have earned from other employment. [Citations.] However, before projected earnings from other employment opportunities not sought or accepted, by the discharged employee can be applied in mitigation, the employer must show that the other employment was comparable, or substantially similar, to that of which the employee has been deprived; the employee’s rejection of or failure to seek other available employment of a different or inferior kind may not be resorted to in order to mitigate damages.

The burden is on the employer to prove that substantially similar employment was available which the wrongfully discharged employee could have obtained with reasonable effort.

Therefore, you want to send the defendant discovery to find out what evidence, if any, they have to prove their burden that plaintiff failed to mitigate damages. This wav, you can lock up the issue before trial to show that defendants do not have any proper evidence.

If the defendants stonewall or refuse to respond, you have all the tools that they generally use against plaintiffs at your disposal; a Motion for Summary Adjudication and /or a Motion in Limine to preclude any claim that the plaintiff failed to mitigate damages.

Procedural Posture

Appellants, a construction company and one of its stockholders, sought review of a judgment of the Superior Court of Los Angeles County (California), which held in favor of respondent property owner in his action to recover damages for an alleged breach of a building contract and the alleged allowance by the company and its stockholders of the filing of certain mechanics' and materialmen's liens.

The company and its stockholder alleged that the judgment was improper because neither the facts nor the law supported the judgment against the company and its stockholders as copartners and because the property owner failed to make the necessary proof as the amount of damage. On appeal, the court reversed. The court held that there was no warrant either in the facts or the law for the judgment against the stockholders of the company as copartners. The court noted that there was no proof that the property owner had received competitive bids for completing the work started by the company, that he had given the contract to the lowest bidder, or that the amount paid was fair and reasonable. The court held that in an action ex contractu the amount of recovery was not left upon general principles to the sound discretion of the court or jury. Where there was a legal measure of damages the trial court or jury had to determine the amount as a fact. Finally, the court held that the property owner failed to meet his burden of showing that the liens were valid and enforceable liens upon the premises.

Outcome

The court reversed the judgment and remanded the cause.