Can I file a lawsuit?
Determining who can file a lawsuit
To be eligible, you need to have standing.
The first step in resolving a legal disagreement is to determine if you are legally able to sue the party or parties involved. You must be a party to the conflict you are suing over in order to bring a lawsuit to court. The ability to file a lawsuit is known as “standing” in legal jargon.
As an example, in order to have a personal injury claim, you must have been the one who really sustained the harm during the accident. Being a bystander who did not experience any harm does not give you the right to sue the party responsible for the accident. That is to say, if you saw someone get hit by a car, you cannot sue the at-fault driver, even if you were impacted psychologically.
Standing to suit is clearly evident in many cases. Suing a tenant is one way for a landlord to get them out of their rental property. To get a divorce, one partner can file papers with the court. A consumer who purchases a defective camera has the right to seek compensation from the retailer. In order to determine who gets to keep the kids, one parent can sue the other in court.
Consult an attorney to determine your standing to sue in a case if you are unsure of your relationship to the matter at hand.
You need to be either a person or an entity to qualify
One must be an “actual legal entity” to initiate a lawsuit.
- A “natural person” is a legal entity, and there are many people who can be on both sides of a case.
- The government recognizes corporations as separate legal entities. For legal reasons, it is considered to be a singular entity.
- A group of individuals, a nonprofit, or a partnership can all be named as “party” in a case if the court agrees that they are adequately representing one side of the argument.
- In a civil lawsuit, the government can be either the plaintiff or the defendant, just like any other private entity.
- A class action lawsuit can involve hundreds of thousands, if not millions, of people. Class actions require the plaintiffs to prove to the court that a large number of individuals share a common interest in the case’s subject matter.
- Proper legal capacity is required.
- To be legally able to participate in a lawsuit, an individual must possess certain mental capacities.
The only way for someone with a “legal disability” to initiate legal action is through a proxy, such as a parent, trustee, guardian, or executor.
An example of someone with a “legal disability” might be:
- People deemed intellectually incompetent due to old age, illness, or infirmity
- Minors (those under the age of 18)
Legal representation from a “guardian ad litem” is required for minors to take part in legal proceedings. A parent or guardian is typically the one in this position. This person acts as a “guardian for the lawsuit,” or “guardian ad litem.” You can appoint someone to act as your “guardian ad litem” by completing the Application and Order for Appointment of Guardian Ad Litem — Civil (Form CIV-010PDF file type icon) and having the judge sign it.
Determining a potential defendant
Before you can even begin to think about filing a case, you need to choose who you should sue. Although it appears to be a straightforward matter, it can actually be quite complex.
In most family law matters, such as those involving divorce, paternity, or restraining orders, the identity of the defendant is straightforward. Verify that you have the right legal name of the individual. If they occasionally go by another name (also known as a “alias”), it’s wise to provide both names.
Deciding who to sue could appear to be a simple task in certain instances. It might be trickier than that, though, depending on the details.
Take this case in point:
It is common practice to file a lawsuit against the at-fault motorist in the event of a vehicle collision. But it’s more complicated than that. As an example, what if the person operating the vehicle is not the legal owner but was simply borrowing it? Since the auto insurance is likely to be in the owner’s name, you should also consider suing them. Suing the driver and the owner would be the appropriate course of action in this scenario.
If you are injured in a slip and fall accident at a store, you should determine if the store is part of a chain (in which case you would need to sue the chain) or if it is a standalone establishment. After then, you should inquire as to the store’s ownership. Since the store manager is likely only an employee, you cannot simply sue them. The store’s owner (or owners) may be another company; finding them will be your task.
If workers on the sidewalk happen to damage your car while fixing something else, you need to find out who they work for. They could be employees of a local government agency, in which case you could file a lawsuit against the city. You must first submit a claim to the government. If the workers are employed by a private company contracted by the city, then you could end up suing both the city and that company.
You can see how difficult it might be to determine who exactly to sue. After you’ve decided on a defendant, the next step is to gather a few essential details about them.
Legal action against an individual
You must use the defendant’s full legal name, including any aliases, when suing them. The address of the individual is also required. If you do not already possess this information, it is usually easy to obtain it by reviewing any documents you may have regarding the legal case. Unfortunately, there are instances when you may not have easy access to this data. Here are a few methods to find someone:
If the defendant in your lawsuit has relocated:
Write and send a letter to the last known address. Below your return address, put “Return Service Requested. Do Not Forward.” You should expect to get a letter bearing the recipient’s new address if they have updated their post office record. See the United States Postal Service’s website for more details.
If the defendant in your lawsuit is a property owner:
You can ask the county tax assessor’s office to look through the tax rolls for you. There is a record of every county property owner in the assessor’s office tax rolls, which include not only the owner’s name but also the property’s address. You can also find the tax assessor’s contact information in the government section of your phone book.
The county recorder’s office is another possible source for this data. You can also find the county registrar or recorder’s office contact information in the government section of your phone book.
If all you have is their phone number, you can look them up in a reverse telephone directory, which will give you the subscriber’s name and address if you search for that number. This directory is available at the main branch of your public library. If a phone number is not listed in the reverse directory, the name and address will not be either.
There is also the option of using an online reverse phone directory. You can find free internet directories by searching for “reverse telephone directory” in a search engine.
Lawsuit against a company
Before bringing a lawsuit against a company, you must determine its legal status. There are primarily three categories of companies:
- A sole proprietorship or partnership
- A limited partnership
- A corporation
Legal action against a partnership or sole proprietorship
Because a sole proprietor is a person who runs the business, you sue that person, not the company itself. Consider the hypothetical case of John Smith, who starts a dry cleaning service with the name “John’s Dry Cleaning.” Since John Smith is the business’s owner, you might potentially sue him. Thus, “John Smith dba (doing business as) John’s Dry Cleaning” would be the defendant in your case.
In order to file a lawsuit against a partnership, you must first obtain their names. Your lawsuit would likely name all of the partners since, legally speaking, the partnership’s debts are the joint responsibility of all partners.
If you want to find a partnership or sole proprietorship:
- The county clerk/recorder’s office
The office of the county recorder or clerk keeps track of declarations of fictional business names. That fictitious business name is actually the name of the company. In our example, John Smith’s company goes under the made-up moniker “John’s Dry Cleaning.”
If a company is using a different name than its owners, the owners’ identities and addresses can still be found on the fictitious business statement. Visit the county or city clerk’s office to get the owner’s name and address.
A city’s tax and permit division, which is part of the city clerk’s office, keeps track of the addresses and names of most people who have business licenses in the city. In the government section of your phone book, you may locate the city clerk’s office’s address and number.
Lawsuits against corporations
Suing a corporation requires using the corporation’s legal name in the lawsuit. A corporation has its own identity in the eyes of the law.
In order to facilitate the delivery of process (legal documents), the California Secretary of State maintains a registry of corporate officers’ names and addresses. Your lawsuit may be served to a corporate official or the agent for service of process.
Alternately, you could contact the Secretary of State via letter and request their most current “Statement of Officers” document. For these written requests, a small charge applies. Include a money order or check made out to the Secretary of State with your written request; if you are unsure of the exact amount, phone them. For the purpose of returning your information, please include a self-addressed stamped envelope.
Get in touch with the Secretary of State’s Office at 1500 11th Street, Sacramento, CA 95814, or dial 1-916-657-5448.
Taking legal action against an LLC
- Get in touch with the Secretary of State’s Office of Business Entities
- Tell them the company’s name. Provide the complete name and address of the limited partnership, the general or managing partner, and the agent for service of process.
- Submit a formal request for further details to:
Secretary of State—Business Entities Section
1500 11th Street
Sacramento, CA 95814
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