When you are preparing to file a small claims case, you need to find out exactly who the defendant (the person or business you are suing) is so you can name him or her correctly on your claim. This may seem like a simple issue, but it can be very complicated.
If you get into a car accident that is caused by another driver, there may be more than 1 person to sue. The other driver may be responsible for driving the car negligently, but the car may be owned by someone else. The car insurance is likely to be in the owner’s name, you need to sue the driver and the owner, you may win, but if you only sue the driver the judge will likely tell you to re-file. If you sue both the driver and the owner and you win, the owner’s car insurance (if he or she has it) will probably pay for your damages. There are ways to get the insurance companies to pay and that why its so important to know the small claims court system like my office does. Do not try to handle a case like this if you do not understand the small claims laws, as it will cost you more money in the long run.
For example, If you sue the plumber but not the general contractor, the plumber may testify that he was told by the general contractor how to install the plumbing, and it is the general contractor’s fault. If the general contractor is not a party and the court agrees that it is the general contractor’s fault, you will lose your case. If both the general contractor and the plumber are sued, they can blame each other, but it will not make any difference if the court decides that only 1 of them or both are at fault — you can get a judgment in your favor.
If you get hurt by a product, you need to find out if the store where you bought the product belongs to a chain, and you need to find out who made the product. You may need to sue the store where you bought the product, the parent company that owns the store where you bought the product, the store chain if the store where you shopped is part of a franchise, and the manufacturer of the product. You need to figure out who owns each of the businesses. If you sue only an individual or 1 party and leave out the others, those who are sued can blame your injury on someone else and you may lose your case if the court finds a nonparty to be responsible.
You need to figure out who your defendant is and how to name him or her (or them, if you have more than one defendant) in your claim. And keep in mind that if you are not sure which of several possible people (or businesses) is responsible for your claim, name each person or business you believe is liable. The court will decide if the people you named in your claim are legally responsible
FIGURING OUT THE DEFENDANT’S NAME
When you fill out and file your claim, you must have the EXACT name of the person or company you are suing (the defendant). If you do not use the correct name, you may not be able to collect any money if you win. You need to put the defendant’s name on the papers that you file with the court.
Read more about this at the Department of Consumer Affairs’ website.
In general, if you are:
Suing a person: Write the person’s first name and last name (and middle initial, if known). If the person has used different names, you can list each of them as an “aka” (also known as). For example, if the person you are suing signed a contract as John Doe, but you know he goes by the name of John Roe at work, you can sue him as “John Doe aka John Roe.”
Suing husband and wife: Write both their full names.
For example: James Jones and Sally Jones.
Suing domestic partners: Write both their full names.
For example: Jane Jones and Sally Jones.
Suing a business owned by 1 person: Write the owner’s name and the business’s name. Name the owner as an individual to have a better chance of collecting if you win.
For example, write: Sally Smith, individually and dba Continental Candies, and Continental Candies, a proprietorship. (In this example and others, “dba” stands for “doing business as.”)
You can check the county records for the fictitious name filing for the business to see exactly how the owner’s name appears. This way you can make sure you have the correct name of the individual owner on the complaint when you sue.
Suing a partnership: Name the partnership and the partners individually too.
For example: Jim Smith and John Jones, individually and dba Smith & Jones, and Smith & Jones, a partnership.
Suing a corporation: Write the exact legal name of the corporation.
For example: Sally’s Dresses Inc., a corporation.
Suing a business owned by a corporation: Write the name of the corporation and the business.
For example: Lotus Corporation, individually and dba The Flower Company, and The Flower Company.
Some corporations are not really separate entities from the individuals who created them because the corporate assets and the assets of the officers and directors are all mixed together. If you get a judgment against a corporation that has no money because the money is all in the bank account of the corporation’s president, you may find yourself unable to collect on the judgment. If you think that the corporation you are suing is really a sham to avoid personal liability by its main officers, you can name the individuals along with the corporation. This is called “piercing the corporate veil.” You will need to show proof to the court that the corporation is not really separate from the individuals who run it.
When suing a corporation, limited partnership, or limited liability company (LLC), you need to check the California Secretary of State’s website to see if the corporation, limited partnership, or LLC is licensed to do business in California. If it is not, it cannot appear in court to defend itself, and you can object to the court if it tries to. You can then request a judgment against the other side.
If the corporation, limited partnership, or LLC is licensed to do business in California, you need to check who is listed as the agent for service of process. This is the person or company that the corporation has chosen to receive legal papers.
Suing because of a car accident: Write the name of the driver and the owners of the car. If there were multiple cars involved, it is important to name each driver and owner.
For example: If Sam Jones was driving the car when you were hit, but Betty Smith is the owner, your lawsuit would say: Sam Jones, driver, and Betty Smith, owner.
If Sam Jones was pushed into your car when he was hit by Bob Hunt, and Bob Hunt was driving a car owned by David Brown, you would name all the drivers and owners: Sam Jones, driver, and Betty Smith, owner, and Bob Hunt aka Robert Hunt, driver, and David Brown, owner.
If the owner and driver are the same person, you can just write that person’s name: Sam Jones, owner and driver.
If you do not know the name of the owner of the car but you have the car’s license plate number, you can fill out a Request for Record Information to the DMV to get the name of the registered owner on DMV
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