who's the defendant?

[RichD]

Let's say you want to sue a business in small
claims court, something routine.

You visit the courthouse, fill out the paper work,
you have to name the defendant. What if it's a
franchise of a national/international organization? (CVS)
What goes in the blank?

Yes, I have a motive behind this question -

--
Rich

[Roy]

AFAIK the defendant is the owner of the business. If you fall down in a
McDonalds then you sue the owner (usually the franchisee).

It may take bit of work to find the owner. The real estate may be
leased to the business so the property deed may not help. The best
thing might be to see who has the business license. Many governments
require the license be posted in the business.

[Barry Gold]

On 9/20/2022 8:55 PM, RichD wrote:

I think CVS stores are owned by CVS, so you would sue CVS (see my
earlier post about "registered agents for service of process")

But if you want to sue a MacDonalds or Starbucks franchise, you would
either visit the place and look at their business license, or contact
the county/city registry of business licenses (or a large public library
might know).

I guess you could also sue "John Doe, Richard Roe, et al" and have the
business served. If they file a demurrer ("that's not us"), you grab the
name from the demurrer amend your lawsuit, and serve them again. (You'll
probably have to pay an additional fee to amend the suit.)

If they're smart, they won't do that, because the fees you paid get
added to the judgment if you win.

--
I do so have a memory. It's backed up on DVD... somewhere...

[Barry Gold]

On 9/20/2022 9:55 PM, Roy wrote:
>
> AFAIK the defendant is the owner of the business.  If you fall down in a
> McDonalds then you sue the owner (usually the franchisee).
>
> It may take  bit of work to find the owner.  The real estate may be
> leased to the business so the property deed may not help.  The best
> thing might be to see who has the business license.  Many governments
> require the license be posted in the business.

Most cities and counties maintain a registry of business licenses, so
you can get that information from the relevant official. I have also
found public libraries to be useful. Let's say I decide to sue Ford
Motor Company in small claims court. Ford isn't headquartered in
California, but they do business here. The law requires them to have a
"registered agent" in California whom you can serve with the papers. The
Business section of the downtown Los Angeles library has a list of those
agents. Or at least used to: I called up once and got the info.

[Stuart O. Bronstein]

RichD <r_dela...@yahoo.com> wrote:

> Let's say you want to sue a business in small
> claims court, something routine.
>
> You visit the courthouse, fill out the paper work,
> you have to name the defendant. What if it's a
> franchise of a national/international organization? (CVS)
> What goes in the blank?

The answer to your questeion depends on the form of the business you
are suing. If it's a proprietorship or partnership, you sue the
individual owners. You can find their name in the county database of
Fictitious Names. Check with the county clerk to see how to find
those owners, though many counties have that information on line now.

If the business you are suing is a corporation or LLC doing business
in your state, the name of who you sue is the name of the corporation
or LLC. Check the records of your state's Secretary of State, to
find the precise name of the company, and their "Agent for Service of
Process." That agent is the person you serve the summons and
complaint on.


--
Stu
http://DownToEarthLawyer.com

[RichD]

On September 21, Barry Gold wrote:
>> Let's say you want to sue a business in small
>> claims court, something routine.
>> You visit the courthouse, fill out the paper work,
>> you have to name the defendant. What if it's a
>> franchise of a national/international organization? (CVS)
>> What goes in the blank?
>

> I think CVS stores are owned by CVS, so you would sue CVS (see my
> earlier post about "registered agents for service of process")
> But if you want to sue a MacDonalds or Starbucks franchise, you would
> either visit the place and look at their business license, or contact
> the county/city registry of business licenses (or a large public library
> might know).

So I look up the business license of the franchisee, and name him as defendant.

Now in this case, we had a dispute, the manager said "The computer software is
corporate, we can't do anything about it, we have to follow its procedures."
The machine is master, and the human operators are servants -

So I want to name the franchisee, and CVS, through their registered agent?

The case could become interesting, because if my complaint holds up,
it implies a system wide issue; consumers are harmed every day,
routinely. Then it might evolve into a class action suit, though that's
a stretch,

In such a case, might we ask for punitive damages, to provoke the
corporation to change its policy?

--
Rich

[RichD]

On September 23, Stuart O. Bronstein wrote:
>> Let's say you want to sue a business in small
>> claims court, something routine.
>> You visit the courthouse, fill out the paper work,
>> you have to name the defendant. What if it's a
>> franchise of a national/international organization? (CVS)
>

> If the business you are suing is a corporation or LLC doing business
> in your state, the name of who you sue is the name of the corporation
> or LLC. Check the records of your state's Secretary of State, to
> find the precise name of the company, and their "Agent for Service of
> Process." That agent is the person you serve the summons and
> complaint on.

After filing the papers at the court house, I have to serve the summons
myself? Doesn't the court notify him, through registered mail?

--
Rich

[Barry Gold]

If you think the policy is sufficiently harmful. But if you're looking
to get CVS to change their policy, you'd get more results with a class
action suit. And in general, if you're looking to go for punitive
damages, it's timeto get out of Small Claims and hire an actual lawyer.

[Barry Gold]

No. The clerk should tell you the process if you ask, but the general
procedure is to do one of three things:

1. Get a process server to hand the papers (the "summons and complaint")
to the defendant, in person. In LA County, the Sheriff's office will do
this fora small fee (around
2. Send the papers to the defendant by certified mail.

When I was in my late teens, my father ran a small check cashing
business. He cashed two kinds of checks: payroll checks and government
checks. Occasionally some business owner would stop payment on a check
or write an NSF check. Then he would call or if necessary visit the
business, inform the owner of the rules about paychecks (higher priority
than other debts) and the "holder in due course" doctrine.

If the owner refused to pay, it was off to small claims court.

I was in college at that point, and during the summer I would often go
to work with him, help out in small ways, and then go off to the library
or watch a movie.

One morning he stopped by a resident, gave me the papers, and told me to
knock on the door, ask the person's name, and give him the papers. I
did, then signed the affadavit of service. [You can't serve the papers
yourself, but almost any other person except your lawyer can. In LA
County, the Sheriff's department will do this for $40 (small claims).]

[Stuart O. Bronstein]

That can be done in California small claims court for an additional
fee. But that doesn't guarantee the person is served - if he doesn't
pick it up and sign for it, he's not served.

Serving the defendant is your responsibility. And normally personal
service (not by mail) is required.

--
Stu
http://DownToEarthLawyer.com

[Stuart O. Bronstein]

RichD <r_dela...@yahoo.com> wrote:
> Barry Gold wrote:

>>> Let's say you want to sue a business in small
>>> claims court, something routine.
>>> You visit the courthouse, fill out the paper work,
>>> you have to name the defendant. What if it's a
>>> franchise of a national/international organization? (CVS)
>>> What goes in the blank?
>>
>> I think CVS stores are owned by CVS, so you would sue CVS (see my
>> earlier post about "registered agents for service of process")
>> But if you want to sue a MacDonalds or Starbucks franchise, you
>> would either visit the place and look at their business license,
>> or contact the county/city registry of business licenses (or a
>> large public library might know).
>
> So I look up the business license of the franchisee, and name him
> as defendant.

Yes, that should work. Checking the DBA database is also a good
idea. Again, it could be a corporation, or LLC so you could serve

their Agent for Service of Process.

> Now in this case, we had a dispute, the manager said "The computer
> software is corporate, we can't do anything about it, we have to
> follow its procedures." The machine is master, and the human
> operators are servants -
>
> So I want to name the franchisee, and CVS, through their
> registered agent?

Yes, you should sue both. Name the corporations, serve the Agents.

> The case could become interesting, because if my complaint holds
> up, it implies a system wide issue; consumers are harmed every
> day, routinely. Then it might evolve into a class action suit,
> though that's a stretch,

That's the purpose of class actions - when individual damages are too
small to sue for, but they add up to a lot considering all the
customers or people injured.

> In such a case, might we ask for punitive damages, to provoke the
> corporation to change its policy?

Unlikely. Punitive damages are very difficult to get unless there
has been an intentional tort. And in small claims court while a
judge may technically be able to give punitive damages up to the
small claims limit, I've actually never seen it done.

--
Stu
http://DownToEarthLawyer.com

[Barry Gold]

On 10/22/2022 7:43 AM, Barry Gold wrote:
> No. The clerk should tell you the process if you ask, but the general
> procedure is to do one of three things:
>
> 1. Get a process server to hand the papers (the "summons and complaint")
> to the defendant, in person. In LA County, the Sheriff's office will do
> this fora  small fee (around
> 2. Send the papers to the defendant by certified mail.

I forgot 3. serve by publication. Used only when you have tried the
first two and failed several times. Then you go to court and get
permission from the judge to serve the defendant by publication.

[micky]

In misc.legal.moderated, on Fri, 21 Oct 2022 20:36:05 -0700 (PDT), RichD

<r_dela...@yahoo.com> wrote:

>
>After filing the papers at the court house, I have to serve the summons
>myself?

You can't serve papers yourself because, I presume, there is too much
temptation and opportunity to lie about it.

In Perry Mason shows, in California, he's served subpoenas himself but
of course that was 60 or more years ago. I don't doubt that things have
changed (or that it wasn't that way then).

> Doesn't the court notify him, through registered mail?

In Maryland the court would do this for a fee. It seemed quicker and
cheaper to ask a friend, so I asked my girlfriend. She did it but she
wasn't very happy about it. (One of many ways she wasn't a very good
girlfriend.) I don't konw if she realized that if the Pres or Secretary
of my HOA denied being served, she would have to appear in court, right?
I thought that was a real possibility for Prez who was a liar who
misinstructed the people counting the ballots and then threw the ballots
away within 3 days of the voting, she said, but I forgot that they had
Directors and Officers insurance, so little reason to deny being served.

--
I think you can tell, but just to be sure:
I am not a lawyer.

[Stuart O. Bronstein]

Barry Gold <bg...@labcats.org> wrote:
> Barry Gold wrote:

>> No. The clerk should tell you the process if you ask, but the
>> general procedure is to do one of three things:
>>
>> 1. Get a process server to hand the papers (the "summons and
>> complaint") to the defendant, in person. In LA County, the
>> Sheriff's office will do this fora  small fee (around

>> 2. Send the papers to the defendant by certified mail.

That normally doesn't work by itself, unless it's a California small
claims court that is doing the mailing. Even then service is not
guaranteed unless the person actually picks up and signs for the
envelope.

> I forgot 3. serve by publication. Used only when you have tried
> the first two and failed several times. Then you go to court and
> get permission from the judge to serve the defendant by
> publication.

Another option is a variation on #1 - serve the papers on an adult at
either the person's home or office, and follow up by mailing a copy.
It is presumed that an adult "apparently in charge" at the person's
home or work will give the document to the defendant. So service is
generally considered complete at that time. No court permission
needed for doing this.

--
Stu
http://DownToEarthLawyer.com

[Stuart O. Bronstein]

micky <mis...@fmguy.com> wrote:

> You can't serve papers yourself because, I presume, there is too
> much temptation and opportunity to lie about it.
>
> In Perry Mason shows, in California, he's served subpoenas himself
> but of course that was 60 or more years ago. I don't doubt that
> things have changed (or that it wasn't that way then).

The plaintiff can't serve process him/herself. But Perry Mason was the
plaintiff's lawyer - the lawyer can do it because he's not the
plaintiff.


--
Stu
http://DownToEarthLawyer.com

[Barry Gold]

In CA, at least, any adult (18+) except the plaintiff can serve the
papers. I was somewhat surprised to learn some of the ways service can
be accomplished (e.g., substituted service). I was also surprised to
learn that the plaintiff's lawyer can themself serve the papers. I had
thought they had to have an employee or contractor do it (e.g., if Perry
Mason had asked Paul Drake to serve them).

https://www.sdcourt.ca.gov/sdcourt/generalinformation/servingdocuments#:~:text=Any%20person%20who%20is%20at,served)%20to%20the%20other%20parties.

[micky]

In misc.legal.moderated, on Sun, 23 Oct 2022 07:49:27 -0700 (PDT),

I only phrased it that way because Barry, in his first post in this
thread, said that in California the lawyer can't. But you seem to have
convinced both of us.