Figure Out How to Name the Defendant
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. And the car insurance is likely to be in the owner’s name. If you only sue the driver and not the owner, you may win, but if the driver is not covered by the insurance, it may be very hard for you to collect your judgment. 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.
- Work is performed on your house and the plumbing is defective. 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.
This section helps you 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.
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 partnersindividually 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 Form INF 70.
Finding the Defendant
Once you know the name of the person or business you want to sue, you need to find their address to fill out the paperwork and to give them a copy of your claim once you file it.
Find a Person
If the person you are suing has moved:
- Send a letter to his or her last address. Under your return address, write "Return Service Requested. Do Not Forward." If the person filed an address change with the post office, you will get the letter back with a new address.
- Also, the Postal Service will give you the new address of someone who has filed a change of address order (PS Form 3575). You can obtain this information if you need the new address in order to have service of process delivered on that person, and you submit a completed and signed "Request for Change of Address or Boxholder Information Needed for Service of Legal Process." You can get the request form from your local post office or the U.S. Postal Service's website.
If the person you are suing owns property:
- Your local tax assessor's office can search the tax rolls for you. The tax rolls list the names and addresses of property owners in the county by both owner name and address of the property. You can search the records online.You can also find the tax assessor's address and phone number in the government pages of your phone book. It is usually in the county section under ASSESSOR.
- You can also get this information from the county registrar/recorder's office. The property owners are listed by name and the listing includes the location of the property owned. You can also find the address and phone number of your county registrar/recorder's office in the government pages of your phone book. It is usually in the county section under RECORDER.
If you only know the person's phone number:
- You can get the address from a reverse directory, which allows you to search for someone's address if you have their phone number. You can look at this directory at the main branch of your public library. The address will not be in the reverse directory if the phone number is unlisted.
- You can also use a reverse phone directory online.
- Try using a search engine like Google, Yahoo, or Bing to search the phone number. You may get the address you are looking for.
Find a Business
If you only know the phone number:
- You can get the address from a reverse directory. You can look at this directory at the main branch of your public library. The address will not be in the reverse directory if the phone number is unlisted.
- You can also use a reverse phone directory online.
- Try using a search engine like Google, Yahoo or Bing to search the phone number. You may get the address you are looking for
If you are suing a corporation or limited liability company (LLC):
- You can find out the name of the corporation or LLC and its agent for service at the website of the California Secretary of State. The website can also tell you how to write to the Secretary of State to get more information about the corporation, such as a list of the corporation's officers.
If you are suing a partnership or a business with 1 owner:
- The county clerk or recorder's office maintains a listing of fictitious business statements. A fictitious business statement lists the names and addresses of the owners of a business or the partners in the business operating under a different business name (the fictitious business name).
- The city clerk's office, tax and permit division maintains a list of the names and addresses of most people licensed to do business in a city. You can find the address and telephone number of the city clerk's office in the government pages of your phone book.
If you are suing a limited partnership:
- You can find out the name of the limited partnership's agent for service at the website of the California Secretary of State. The website can also tell you how to write to the Secretary of State to get more information about the limited partnership.