Legal Question in Business Law in California

Daycare contract

A couple of weeks ago, I enrolled my 2 sons in a home daycare. I signed a contract stating if I should remove them from the daycare I should give 1 months notice or pay the months tuition. After the second day of care I decided to remove my children from the care. I felt that the daycare was not suitable for my children. My son (5 yrs) told me the providers dog was jumping on my 22 month old and scaring him and also that her daughter was ''being mean'' to the 22 month old and my 5 year old had to inform her of this. The provider also stated that my 22 month old had spent most of his day outdoors. I did not feel that my children were safe in this daycare. Aside from paying a yearly tuition of $100.00 and $94.00 for the 2 days she watched the children, she wants me to pay 2 additional weeks or she will file in small claims for the full months tuition. Please let me know where I stand in this situation. Am I liable to pay over $600.00 for 2 days of care for which I was not pleased?

Thank you for your time,

--name removed-


Asked on 10/13/01, 11:51 pm

2 Answers from Attorneys
Bryan Whipple Bryan R. R. Whipple, Attorney at Law

Re: Daycare contract

The outcome of small-claims suits is not always predictible. The contract you signed essentially asks for one month's tuition as liquidated damages for breach, and this sounds excessive. Also, there is a public policy favoring safety of children. My gut feeling is that you should politely refuse to pay, putting your reasons in writing. Try to find adult witnesses who will back you up.

Then, if you are sued, defend on these grounds:

(1) The provider breached express and implied promises to provide a safe environment;

(2) The tuition demand is an excessive penalty rather than fair liquidated damages for breach of contract under these circumstances.

(3) Public policy favors giving a parent the right to take her children out of an unsafe situation notwithstanding the contract.

With this and good evidence and supporting witnesses you have a good chance of winning.

Also, buy or borrow (library?) a small-claims self-help book and read the applicable chapters on defending.

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Answered on 11/22/01, 2:58 am
Sheldon G. Bardach Law Offices of Sheldon G. Bardach

Re: Daycare contract

Clearly an implied condition of the agreement is that the day care do its job appropriately. In fact, if the allegations are to be believed, the center breached the agreement by its poor performance and you are not further bound on your promise to pay the additional two weeks charge. In fact, you could require the center to repay the sums you've paid for day care.

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Answered on 11/22/01, 3:20 am


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