Figuring out how to file a lawsuit can be a daunting task. At Quirk Reed LLP, we consider the answers to the following four questions BEFORE filing a lawsuit:
1) Whether you can actually file your case?
2) Where are you filing your case?
3) Who are you suing or taking to court?
4) When did the incident occur?
Apart from going to court, we also explore other options to resolve your dispute.
Filing a Lawsuit: Who can sue?
To be eligible to sue, you must meet the following criteria:
1) Legal Standing
You need to determine whether you possess the right to file a lawsuit against the business or person with whom you have a dispute before you consider how to file a lawsuit. To file this lawsuit, you must be the person who is directly impacted by the legal dispute that you are pursuing. This gives you “standing” to file a lawsuit in court. For instance, if you’re filing a personal injury suit, you must be the person who suffered from the injuries caused by the accident. You are NOT eligible to sue the party who caused the accident if you were a passer-by or witness.
Examples of legal standing include:
– A landlord suing a tenant to evict her or him.
– A customer suing a store for selling a faulty television set for reimbursement
If you do not have a clear cut link to the lawsuit you’re trying to file, then speak to an attorney at Quirk Reed LLP. They will help you determine whether you have the legal right to pursue a lawsuit.
2) Legal entity or natural person
Another important point to remember in how to file a lawsuit is you must be a legal entity/natural person. What is a natural person? This is a legal entity that includes any number of persons on both sides of the lawsuit. A corporation is considered a single entity. A group of citizens, a non-profit organization, or business partnership may file a lawsuit if the court accepts that they represent one side. In a class-action suit, hundreds and even millions of people can be parties.
3) Legal Capacity
You must be 18 years with sound mental judgment and competence to be able to file a lawsuit in California. You will be deemed as having a “legal disability” if you are:
– A child under age 18;
– Are judged as mentally incompetent due to age, infirmity, or illness.
A person with a “legal disability” may still file a lawsuit via a parent, trustee, executor, legal representative, or guardian. Persons who are under 18 years of age but obtain a “guardian ad litem” to file a lawsuit. To attain one, you need to complete the Application and Order for Appointment of Guardian Ad Litem-Civil form. A judge must sign it, enabling the person named in the form to assume to the responsibility of “guardian ad litem”.
Filing a Lawsuit: Who To Sue?
This is the next step in how to file a lawsuit. Before making preparations to file the lawsuit, you need to determine whom to sue. This is a lot more complicated than it seems. In some cases, the person who you’re going to sue is straightforward. This is evident in family law cases for parentage or divorce, and even when you’re filing a restraining order. In other circumstances, this may be more difficult such as in the following examples:
Example 1
You’re in a car accident and you decide to file a lawsuit against the person who was driving the vehicle that collided with you. However, if the driver who crashed into you does not own that vehicle and was simply borrowing it, then you might also consider suing the owner. Your lawsuit would have the names of two people; the owner and the driver.
Example 2
If the sidewalk is being repaired and the city workers accidentally damage your vehicle, you will need to determine who commissioned the workers. In case they’re working for the government, you will have to figure out how to file a lawsuit for government claims. If the workers are employees of a company contracted by the city or state government, then you may sue both the city and the company.
Example 3
You slip on a spill in a grocery store and incur personal injuries. You decide to sue. To do so, you need to determine if it’s a single store or part of a chain of stores. Then figure out who owns the store where you fell. You may not sue the manager of the store because he or she is an employee. Get the names of the owners.
After we help you figure out whom to sue, you need to obtain basic details about the organization or person.
Suing a Person
When you decide to file a lawsuit against a person, you must use their legal name and aliases used by that individual. You will also require the person’s address. Usually, it’s quite simple to obtain this information. In case it’s difficult to locate the person, we will consider the following solutions to track the individual:
The person has moved-Send a letter to the person’s last address. Below your return address, print “Return Service Requested. Do Not Forward.” In case the person has filed an address change, the letter will be returned to you with the new address information.
The person owns the property- Visit the county tax assessor’s office to search the tax rolls on your behalf. These are located in the assessor’s office. They contain a list of names and addresses of property owners in that particular county. The owner’s name and the property address will be listed in the tax rolls. You may also find this information at the county registrar’s office. They have a list of all the properties with the location and owners’ names.
If you only have the person’s phone number: You can easily get the person’s address through the reverse phone directory. You simply need a telephone number to find the name and address of the subscriber. In case the number is unlisted, the name and address will not be listed. Reverse telephone directories may also be accessed online.
Suing a Business
IF you’re suing a business, determine the type of trade it is. There are three types of business:
– a partnership or sole proprietorship
– a limited partnership
– a corporation
Suing a Partnership or Sole Proprietorship
To determine how to file a lawsuit against a sole proprietor, you first have to file against the person operating that business, irrespective of the name she or he is using. For instance, if Karen Johnson is operating a pizzeria called “Mama’s Pizza”. You would pursue your suit against Karen Johnson because she is the owner of that particular business. In other words, the defendant would be “Karen Johnson doing business as (dba) Mama’s Pizzeria”.
To file a lawsuit against a partnership, you need to obtain the names of the partners. Under California law, each partner is held responsible for upholding the obligations stated under the business partnership. This is why each partner’s name would be mentioned in your lawsuit.
To locate a partnership or sole proprietorship: Visit the county clerk or recorder’s office. They maintain a list of all the fictitious business names. These are actual names of businesses. From our previous example, “Mama’s Pizzeria” would be the fictitious name of Karen Johnson’s business.
In the fictitious business statement lists, you will also find the names and addresses of the business owners who are operating under a different name.
If you’re unable to visit the county recorder or clerk in person, you can easily perform an online search on their website. Simply perform a “fictitious business name statement” search on their website. You may also contact the office directly. The name and phone number of the city or county clerk’s office are listed in the government pages of the phone book.
In addition to the county clerk, you may also visit the tax and permit division of the city clerk’s office. They maintain a thorough list of all the addresses and names of persons who are licensed to do business in that particular city or county. The address and contact information of the city clerk’s office can also be found online or in the government pages of the phone book.
Suing a Corporation
If you want to file a lawsuit against a corporation, you must file using their legal name. A corporation is considered as a distinct legal entity. The California Secretary of State’s office maintains thorough records of all the names and addresses of officers belonging to corporations, including their agents for service of process. The agent listed for the service of the process is also called a corporate officer. They will be served with your lawsuit. To obtain this information, visit the California Secretary of State’s Business Search Portal.
You may send a letter to the Secretary of State, requesting for a list of recent “Statement of Officers” on file. You will be required to pay a small fee to obtain those written requests. This can be paid via money order or check to the Secretary of State. Include a self-addressed, stamped return envelope with your payment. Send this request to the following address:
Secretary of State — Business Entities Section
1500 11th Street
Sacramento, CA 95814
1-916-657-5448
Suing a Limited Partnership
To get the name of the limited partnership, visit the California Secretary of State’s Business Search Portal. You may directly contact the Secretary State, Business Entities Section at:
1-916-657-5448
Provide them with the name of the company and request the following details:
– The complete name and address of the limited partnership
– Name and address of the agent for court process
– Name and address for the managing or general partner
You may also send a written request to the following address:
Secretary of State— Business Entities Section
1500 11th Street
Sacramento, CA 95814
Filing a Lawsuit: Where to file your lawsuit?
The final step in how to file a lawsuit in California is determining where to file your case.
The State of California has two courts: state and federal. The federal court hears cases involving actions between citizens residing in different states (diversity jurisdiction) and cases where federal law has been broken. The damages involve a minimum of $75,000. The remainder of cases is heard in state courts.
Limited/Unlimited Jurisdiction
Lawsuits may unlimited or limited jurisdiction. Cases belonging to the limited jurisdiction category have incurred maximum damage of $25,000. In unlimited jurisdiction cases, the damages total more than $25,000. There is no upper limit to the number of damages that can be awarded in an unlimited jurisdiction case.
Jury or Judge Trial
Every American citizen has a constitutional right to a peer jury trial. However, this is only applicable in certain cases. If a party is seeking equitable relief, i.e. accounting or injunction, there won’t be a jury trial. In a majority of cases where reparations to damages are sought, the damaged party has the right to a jury trial.
Choosing the County
The State of California is divided into several counties and cities. You may file your lawsuit in the county or case where the defendant stays. If there are multiple defendants involved, you may file your lawsuit in the county in which any one of the defendants lives.
In the case where the defendant is a corporation, you may file your lawsuit in the county where the main place of business is based. Cases involving contracts can be pursued where the contract was established or performed. A corporation may also be sued where the liability occurred and or where the injury happened.
Filing a Lawsuit: Statute of Limitations
This is the final step in how to file a lawsuit. There is a statute of limitations or time limit to when you can file a lawsuit. In case of a personal injury, the statute of limitations is two years from the date of injury. For damages resulting from property damage, the time limit is three years. For a breach of a written contract, you have up to four years to file your lawsuit.
The process of how to file a lawsuit can seem overwhelming and confusing. The team at Quirk Reed LLP will guide you through the entire process until your lawsuit reaches a resolution. Contact us today!