Figuring out who can sue
You must have standing
First, you need to figure out whether you have the right to file a lawsuit against the person or business you have a dispute with. To file a lawsuit in court, you have to be someone directly affected by the legal dispute you are suing about. In legal terms, this is called having “standing” to file the lawsuit.
For example, in a case for personal injury, you have to be the one to have actually suffered the injury in the accident. You cannot just be a person who was standing nearby and sue the person who caused the accident if you did not suffer any damages.
In the cases this website deals with, standing to sue is very clear. A landlord can sue a tenant to evict him or her. One spouse can take the other one to court for divorce. A customer can sue the store that sold her a broken camera for reimbursement. A parent can take another parent to court for custody of the children.
If you do not have a clear connection to the lawsuit you want to file, talk to a lawyer to make sure you have the legal right (standing) to sue in that case.
You must be a natural person or a legal entity
Only an “actual legal entity” may start a lawsuit.
- A “natural person” is a legal entity – and any number of people can be parties on either side of a lawsuit.
- A corporation is a legal entity. It is a single entity that can be identified as one for the purposes of the law.
- A business partnership, a nonprofit organization, or a group of citizens can be parties in a lawsuit if the court accepts that group as representing 1 side of the dispute.
- The government may be treated as if it were a private party in a lawsuit, as a plaintiff or defendant in a civil case.
- In a class action lawsuit, thousands and even millions of persons can be parties. To be considered legally as a class action, the plaintiffs must convince the court that many people have similar interests in the subject matter of the lawsuit.
You must have legal capacity
A person must have the “legal capacity” to be a party to a lawsuit.
Someone with a “legal disability” can generally only file lawsuits through a legal representative, like a parent, a guardian, a trustee, or an executor.
Some people considered to have a “legal disability” are:
- Children under the age of 18; and
- People who are judged mentally incompetent because of illness, age, or infirmity.
If you are under 18, you need something called a “guardian ad litem” to participate in a lawsuit. This is usually a parent or legal guardian. “Guardian ad litem” means “guardian for the lawsuit.” To get one, you have to fill out a court form, the Application and Order for Appointment of Guardian Ad Litem — Civil (Form CIV-010
) and have the judge sign it allowing the person named on the form to become your “guardian ad litem.”
Figuring out whom to sue
When you are thinking of going to court and preparing to file a lawsuit, you need to find out exactly whom you should sue. This may seem like a simple issue, but it can be very complicated.
If you have a family law case for divorce or for parentage (paternity), or you are filing a restraining order, it is pretty easy to figure out whom you want to file your case against. Make sure you have the person’s correct legal name, and, if he or she uses another name sometimes (called an “alias”), it is a good idea to include the other name too.
In some cases, figuring out whom you want to sue can seem straightforward. But, depending on the specific circumstances, it may be more complicated.
For example:
- If you get into a car accident you would sue the person who was driving the car that hit you. But it is not quite that simple. For instance, what if the driver of the car does NOT own the car and was just borrowing it? In that case, you would also want to sue the owner of the car, since the car insurance probably would be in the owner’s name. So, in this example, you would file your lawsuit against 2 people, the driver and the owner.
- If you slip and fall in a store, you need to find out if the store belongs to a chain (which means you would have to sue the chain) or if it is just that 1 store. And then you would need to figure out who owns the store. You cannot just sue the manager of the store, since he or she is probably just an employee. You have to find the owner or owners of the store, and it is possible that the owner of the store is another business.
- If, when fixing something on the sidewalk, workers accidentally damage your car, you need to figure out who the workers work for. If they work for a department in your city government, you would have to sue the city. (And you would need to file a government claim first. Click for more information on government claims.) If they work for a private company that the city contracts with, you may have to sue the private company AND the city.
As you can see, figuring out exactly whom to sue can be very complicated. Once you figure out whom to sue, you need to get some basic information about that person or organization.
Suing a person
When you sue a person, you file your lawsuit against that person, using their legal name and any aliases. You also need that person’s address. Often, it is easy to get this information if you do not already have it, by looking at any paperwork you may have about the legal dispute. But, sometimes, this information is not easily available to you. Below are some ways to track someone down.
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. Click for more information from the U.S. Postal Service
.
If the person you are suing owns property
The county tax assessor’s office can search the tax rolls for you. The tax rolls in the assessor’s office list the names and addresses of property owners in the county by both owner name and address of the property. The tax assessor’s address and phone number is also listed 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 each listing includes the location of the property owned. The address and phone number of your county registrar/recorder’s office is also listed 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 telephone directory, which allows you to search by a telephone number to get the name and address of that telephone number’s subscriber. You can look at this directory at the main branch of your public library. The address and name will not be in the reverse directory if the phone number is unlisted.
You can also use a reverse phone directory online. Typing “reverse telephone directory” into a search engine will provide you with links to free online directories.
Suing a business
If you are suing a business, you need to figure out what kind of business it is. There are 3 main types of businesses:
- A sole proprietorship or partnership;
- A corporation;
- A limited partnership.
Suing a sole proprietorship or partnership
To sue a sole proprietor, you file against the person running the business, no matter what name he or she is using. For example, let’s say John Smith opens a dry cleaning business called “John’s Dry Cleaning.” You would sue John Smith because he owns the business. So, your defendant would be “John Smith dba (doing business as) John’s Dry Cleaning.”
To sue a partnership you should get the names of the partners. Under the law, each of the partners is responsible for the obligations of the partnership, so each partner would be named in your lawsuit.
To find a sole proprietorship or partnership:
- The county clerk/recorder’s office
The county clerk or recorder’s office maintains a listing of fictitious business name statements. The fictitious business name is the name of the business. In our example, “John’s Dry Cleaning” is the fictitious business name of John Smith’s business.The fictitious business statement lists the names and addresses of the owners of businesses operating under a name different from the owners. Get the names and addresses of the owners from the county clerk’s office or city clerk’s office.
Find your county clerk/recorder’s website
. Look for business’ “fictitious business name statement.” You can also find the address and phone number of your county and city clerks’ offices in the government pages of your phone book.
- The city clerk’s office
The city clerk’s office (tax and permit division) maintains a list of the names and addresses of most persons 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.
Suing a corporation
When you sue a corporation you file against the corporation under its legal name. A corporation is a separate legal entity.
The California Secretary of State keeps a record of the names and addresses of the officers of corporations and their agents for service of process (court papers). The agent for service of process or a corporate officer can be served with your lawsuit.
You can get this information by going to the California Secretary of State’s Business Search portal.
Or you can write a letter asking for the most recent “Statement of Officers” on file with the Secretary of State. There is a small fee for these written requests. Submit your written request along with your check or money order, payable to the Secretary of State, for the appropriate amount (call them to find out how much it is). Enclose a self-addressed stamped envelope for the return of your information. Send to:
Secretary of State — Business Entities Section
1500 11th Street
Sacramento, CA 95814
1-916-657-5448
Suing a limited partnership
You can get this information the same way as for corporations, by going to the California Secretary of State’s Business Search portal.
1. Contact: Secretary of State— Business Entities Section
2. Give them the name of the company. Ask for the following information:
- Full name and address of the limited partnership;
- Name and address of the general or managing partner; and
- Name and address of the agent for service of process.
3. For more information, send a written request to:
Secretary of State— Business Entities Section
1500 11th Street
Sacramento, CA 95814