Filing a lawsuit against a business

[mabuta]

What is the name of your state (only U.S. law)? CA

I may have filed a lawsuit and named the wrong defendant(s) and want to know how can I correct this.

The original lawsuit was against an individual who claimed to own the business. I filed the suit against him as a DBA which is the name of the business on the receipt, the contract, and also the name on my deposited/cashed check. I won the judgment by default as he did not show.

To collect the judgment, I have had him come to court under an order to appear for examination. We have appeared before the judge 2 times now. He claims he is nor ever has been a DBA and has been granted continuances to produce information on the business he claims to have nothing to do with. The judge is now leaning towards changing the judgment to be against the individual at our next hearing.

I am confussed on this whole process and feel I may have incorrectly filed my lawsuit by naming the individual as a DBA. I have several questions and hope someone can help me understand how I got this so wrong.

1) Lets say the person never was a DBA as he claims, who would be responsible for the original contract?
2) The business with whom the original contract was written is still doing business, same location, same name, same LLC. Can I file a lawsuit against the business even though I have this suit in process with the indiviual?
3) The individual has offered, during arbitration, to provide services to satisfy the judgment. If this person is not associated with the business why would he offer services? This one probably can't be answered but would it not indicate his association, of some kind, with this business?

Thanks in advance for reading all of this and for any assistance!

 

[Mass_Shyster]

2) The business with whom the original contract was written is still doing business, same location, same name, same LLC.

If the business is an LLC, it is not a DBA.

 

[tranquility]

1) Lets say the person never was a DBA as he claims, who would be responsible for the original contract?

The entity you signed the contract with.

2) The business with whom the original contract was written is still doing business, same location, same name, same LLC. Can I file a lawsuit against the business even though I have this suit in process with the indiviual?

If the individual you sued was wrong, yes. If he owns the LLC, keep him on the suit and amend the complaint to add the business entity. (You did sue the guy and some "does", right?)

3) The individual has offered, during arbitration, to provide services to satisfy the judgment. If this person is not associated with the business why would he offer services? This one probably can't be answered but would it not indicate his association, of some kind, with this business?

Makes me think he owns the business and you need to join the business to the suit. The only way you could probably get to him (guessing a bit as no facts are provided) is to pierce the corporate veil.

 

[mabuta]

If the business is an LLC, it is not a DBA.

Thank you Stevef for the reply.

 

[mabuta]

The entity you signed the contract with.
If the individual you sued was wrong, yes. If he owns the LLC, keep him on the suit and amend the complaint to add the business entity. (You did sue the guy and some "does", right?)
Makes me think he owns the business and you need to join the business to the suit. The only way you could probably get to him (guessing a bit as no facts are provided) is to pierce the corporate veil.

Thank you tranquility. Looks like I need to connect him to the LLC. If I am able to do this then I can amend the present judgment.

Next question...I have attempted to find out ownership/members of the LLC via County recorder and Secretary of State with not much success. I can verify the LLC exists but can not get the owner(s)/member(s). How can I get the details of an LLC to include owner(s)/member(s)?

 

[tranquility]

Thank you tranquility. Looks like I need to connect him to the LLC. If I am able to do this then I can amend the present judgment.

Next question...I have attempted to find out ownership/members of the LLC via County recorder and Secretary of State with not much success. I can verify the LLC exists but can not get the owner(s)/member(s). How can I get the details of an LLC to include owner(s)/member(s)?

Absent some evidence the LLC is undercapitalized or being run as a personal account, why would you want their names? You sue the business and collect from them. Only if you are not going to be paid would you worry about piercing the veil. If you sue them now, it might be malicious prosecution. It is a little different when you have the actual person who signed the contract in the suit, but, the other owners?

If you need to find them out, you can get the information in discovery.

I suspect your judgment will be removed and you will have to try again. While he should not have defaulted, it sounds like the judge will let him off.

What are we talking about? How much money?

 

[mabuta]

Absent some evidence the LLC is undercapitalized or being run as a personal account, why would you want their names? You sue the business and collect from them. Only if you are not going to be paid would you worry about piercing the veil. If you sue them now, it might be malicious prosecution. It is a little different when you have the actual person who signed the contract in the suit, but, the other owners?

If you need to find them out, you can get the information in discovery.

I suspect your judgment will be removed and you will have to try again. While he should not have defaulted, it sounds like the judge will let him off.

What are we talking about? How much money?

The total judgment is $3700.00+, the exact amount I do not have in front of me right now. It is not that much but I think that is what this guy is all about. You are correct when you say "only if you are not going to be paid". I have found this business has numerous lawsuits and judgments (under $9k)all simialr to my own. If I have to sue again, I would like to have as much info as to the LLC as possible.

Thank you very much for your help.

 

[latigo]

What is the name of your state (only U.S. law)? CA

I may have filed a lawsuit and named the wrong defendant(s) and want to know how can I correct this.

The original lawsuit was against an individual who claimed to own the business. I filed the suit against him as a DBA which is the name of the business on the receipt, the contract, and also the name on my deposited/cashed check. I won the judgment by default as he did not show.

To collect the judgment, I have had him come to court under an order to appear for examination. We have appeared before the judge 2 times now. He claims he is nor ever has been a DBA and has been granted continuances to produce information on the business he claims to have nothing to do with. The judge is now leaning towards changing the judgment to be against the individual at our next hearing.

I am confussed on this whole process and feel I may have incorrectly filed my lawsuit by naming the individual as a DBA. I have several questions and hope someone can help me understand how I got this so wrong.

1) Lets say the person never was a DBA as he claims, who would be responsible for the original contract?

2) The business with whom the original contract was written is still doing business, same location, same name, same LLC. Can I file a lawsuit against the business even though I have this suit in process with the indiviual?

3) The individual has offered, during arbitration, to provide services to satisfy the judgment. If this person is not associated with the business why would he offer services? This one probably can't be answered but would it not indicate his association, of some kind, with this business?

Thanks in advance for reading all of this and for any assistance!

Pardon me for saying so, but if you weren’t certain as to whom or what you were conducting business with and apparently did little if any homework before filing the lawsuit, wasn’t that being a bit risky. Are you aware that it could result in civil penalties depleting your pocketbook?

1) Lets say the person never was a DBA as he claims, who would be responsible for the original contract?

What led you to believe that this “person” that you sued claimed to be functioning as a DBA? Letterheads? Business Cards? Advertising?

If you have evidence that the defendant represented to you that he was functioning as a sole proprietorship under an assumed fictitious name, then he would be the party liable. And personally liable “for the original contract” whether or not he complied with California law by registering the DBA with the county clerk.

BUT then you continue by mentioning “2)” a Limited Liability Company (LLC) which suggests that you may be thinking that the LLC is a DBA, which it isn’t. It is a separate legal entity.

So if the “person” represented that he was contracting with you on behalf of an LLC, and it was properly registered, the individual would not be personally liable on the contract.

3) The individual has offered, during arbitration, to provide services to satisfy the judgment. If this person is not associated with the business why would he offer services? This one probably can't be answered but would it not indicate his association, of some kind, with this business?

Since you make no mention of the defendant seeking to set aside the default, I suspect that he or whatever he represents is admitting responsibility for the judgment.

I would accept the proposal to trade-off and treat the episode as a lesson learned.

 

[mabuta]

Pardon me for saying so, but if you weren’t certain as to whom or what you were conducting business with and apparently did little if any homework before filing the lawsuit, wasn’t that being a bit risky. Are you aware that it could result in civil penalties depleting your pocketbook?



What let you to believe that this “person” that you sued claimed to be functioning as a DBA? Letterheads? Business Cards? Advertising?

If you have evidence that the defendant represented to you that he was functioning as a sole proprietorship under an assumed fictitious name, then he would be the party liable. And personally liable “for the original contract” whether or not he complied with California law by registering the DBA with the county clerk.

BUT then you continue by mentioning “2)” a Limited Liability Company (LLC) which suggests that you may be thinking that the LLC is a DBA, which it isn’t. It is a separate legal entity.

So if the “person” represented that he was contracting with you on behalf of an LLC, and it was properly registered, the individual would not be personally liable on the contract.



Since you make no mention of the defendant seeking to set aside the default, I suspect that he or whatever he represents is admitting responsibility for the judgment.

I would accept the proposal to trade-off and treat the episode as a lesson learned.

Thank you for the admonishment and you are absolutely correct, lesson learned indeed. I was looking into my options as they pertain to the business on the contract. Accepting his proposal is an option and he knows the same thing you have mentioned, he never represented himself as a DBA.

Thank you again for your reply and information.