Correctly Naming Business Defendants

When trying to sue in small claims court, the most common mistake people make is not writing the proper, legal name for a business they are trying to sue when filing a lawsuit and when writing and sending the letter demanding payment. If you need assistance preparing your demand letter, visit us at JusticeDirect and we will guide you step-by-step thru the process.

Tip: Avoid these 5 mistakes in small claims court.

Why can this be such a tricky issue? One big reason is that businesses frequently operate under a name that isn’t their true, legal name. For instance, let’s say you bought an electric can opener at a store called Open Sesame. After you try to use the can opener, you find that the opener is broken, and it cuts your skin. You might be tempted to sue Open Sesame. But it may be that the real legal name of the company where you bought your can opener is ACME Can Openers, Inc., even though they do business under the name Open Sesame. If you were to file a lawsuit against “Open Sesame,” you would just be wasting time and money, because your lawsuit would be dismissed.

Read on to see how you can find the right name for the business you want to sue.

Large companies, like Pepsi and General Motors, are typically either corporations or brands belonging to corporations. Corporations must include an identifier of their corporate status in their legal name. So, if you would like to sue a business, and have found a name for the business with “Inc.” or “Corp.” at the end of it, then it is very likely that you have already found what you are looking for. In other words, “Inc.” (short for “incorporated”) and “Corp.” are identifiers that are by law included in the name of a corporation to make sure that the public knows that it is a corporation. Companies are not allowed to use these corporate identifiers—“Inc.” or “Corp.”—in anything but their real, legal name.

Another popular business form is a limited liability company. Limited liability companies are identified by “LLC” at the end of their legal name. So if the name you have found for the business you are trying to sue has “LLC” at the end, then you most likely have its real name. Just like with “Inc.” and “Corp.”, a limited liability company is required to have “LLC” in its legal name, and cannot use “LLC” in any name other than its legal name. That is, it cannot use it in a fictitious business name, which is like a nickname it uses for itself; we’ll explore fictitious business names, or Doing Business As names (DBA or dba) later.

Because “Inc.”, “Corp.”, and “LLC” are formal titles that need to be included and can only be included in the formal legal name of companies that are corporations (“Inc.” and “Corp.”) or limited liability companies (LLC), if a company is called “ACME, Inc.”, you can probably assume that that is its legal name.

Other business structures also require identifiers to be included in their legal names, such as limited partnerships (LP) and limited liability partnerships (LLP). Just like with “Inc,” “Corp,” and “LLC,” if you see either of these identifiers in a business’s name, then the chances are good that you have identified the business’s real legal name.

However, even if you have already found a name for the business you are trying to sue that has “Inc.” in it, it is a good idea to double-check. Correctly naming the business you are trying to sue is very important, and you can usually easily check the company’s name against state records.

Whether or not the name you have has a corporate identifier, limited liability company identifier, or another identifier, you should look up the name in the state database of registered businesses. Every corporation or limited liability company that is formed in a particular state can be found in that state’s registry. Even if a business wasn’t formed in a particular state, it might be required to register in that state if it has offices, stores, or warehouses in it, or even if it just does a small number of sales in that state without a physical presence in it (for instance, in the case of online sales).

California has made its lists of registered corporations (Incs and Corps), limited liability companies (LLCs), and limited partnerships (LPs) publicly accessible through its business search, but its lists of GPs (general partnerships) and LLPs are not. You should be able to find a listing for any company that is an Inc, Corp, LLC, or LP on the Secretary of State’s website. If the name you have for the business already has an identifier like “Inc” or “Corp” in it, then search for the name complete with the identifier. If it doesn’t have an identifier, then you can search for the name, without any identifier.

Business Name Located

Plenty of businesses share the same name. Use common sense and a bit of research to make sure you have found the right business in your state records search.

Make sure to double-check the details in the listing you have found from your state search against what you know about the business, to ensure that they are indeed the same (rather than just similarly named). Details in the listing that can be useful include: its date of incorporation, any people’s names (officers, directors, and agent), and the business address.

Business Name Not Located

What happens if you’ve run a state business record search and the search yields zero results? Try searching for the business name without the identifier (ex., “ACME Elevator” without the “Inc.”). Still zero results? Don’t worry: There are more ways to find the business’s name.

At this point, you’ve tried state records search for the business name that you have on hand and you haven’t found the business. The next step is to figure out the location of the business if you don’t already have this information.

If you don’t know the address, then check any sort of documentation you ever received from the company (such as a receipt, invoice, or contract). This documentation might even include the company’s legal name—especially a contract. Another spot to check for the company’s location or legal name is the company’s website. If you don’t know the company’s website address, you can check an email from the business: There might be a link in the body of the email itself, or the website might be in the email address from which you received the email (if it is a customized business email address, as opposed to a generic Gmail or Yahoo address). If you still can’t find the company’s website, then try searching for the business with a search engine like Google. In fact, whether you find the company’s website or not, searching for the business is still a good idea as it might produce results that show you the company’s location. If you do find the company’s website, check its footer (the bottom of the website’s homepage), the “Contact us” page, or even the “Terms of Use” to find the company’s location (or even legal name). While you’re checking the footer of the website, check whether the company has listed its legal name next to the copyright mark (©), if there is a copyright mark.

Learn More: Find the Address of a Person or Business I want to Sue.

Incorporated in another state

Once you’ve found the company’s location, you can determine if it is an out-of-state business. If it is an out-of-state business, you can check the state business records database for the state in which it is located. You can find that state’s business records search tool by searching Google for the state name + “business records search” (ex: Michigan business records search). Normally, the business records search tool is located at that state’s government website for its secretary of state. If you do find a listing, then go through the same process as described above (under the “State Corporate Lookup” section) to ensure that the listing you’ve found is indeed the right business, instead of a similarly named one.

Now that you have confirmed the business’s location, and checked its home state’s business registry if you still haven’t found the business’s legal name, then the business either isn’t a corporation, LLC, or another type of business that would be listed in the state business records search, or the name you have on hand is “fictitious” (which is also referred to as a “DBA” or “dba,” which stands for “Doing Business As…”). It’s also likely that both of these points are true, especially if the company is a smaller business: that is, it is both not a corporation and the name you have for it is its fictitious business name (FBN).

FBN/DBA Search at the County Level

What is a fictitious business name or DBA? In the case of the electric can opener you bought from Open Sesame, “Open Sesame” would be the company’s fictitious business name, and “ACME Can Openers, Inc.” would be its legal name. In other words, a fictitious business name is a nickname that a business uses for branding, normally because it just sounds better than the company’s real, legal name.

Because the government wants to ensure that businesses can’t avoid lawsuits by hiding their true, legal names, it requires them to register their fictitious business names. But, unlike corporations and LLCs, which have to register (under their real name) at the state level, fictitious business names are registered at the county level. So fictitious business name searches are done through county governments, rather than state governments.

Every business operating under a fictitious business name (dba or DBA) in a particular county must register that fictitious business name in that county. For instance, if the Open Sesame shop you bought your can opener in was located in Orange County, California, then ACME Can Openers, Inc., the real company that calls itself Open Sesame, would have to register its fictitious business name with the Orange County government. If it had other Open Sesame stores in other counties, it would have to register the Open Sesame fictitious business name with each of those county governments as well.

Very often, a single person or multiple people are the legal owners of a business, as opposed to a business entity such as an LLC or corporation. Many small businesses that operate under a fictitious business name are owned by a sole proprietor (one person) or a partnership (a group of people). For example, if you discover that Joe’s Bar & Grill is the fictitious business name for Joseph McAllen, that means that Joseph McAllen is the legal name of the business owner. In other words, you are not always looking for a business as the owner behind a fictitious business name; sometimes that business is just a person or people.

However, if a person owns a business and has named the business after their full legal name (or even just last name, in California), then they do not need a fictitious business name license. The same applies to a business named after its owner’s name along with a matter-of-fact description of what the business is or does. For instance, if Joe’s Bar & Grill were owned by Joseph McAllen and it was named “Joseph McAllen” or “Joseph McAllen’s Bar & Grill,” then it would not require a fictitious business name license, because its name is merely a description of the business and its owner’s legal name—in other words, its name is not fictitious. (“Joe’s Bar & Grill,” however, does not include Joseph McAllen’s full name or last name, which is a bare minimum in California.) The tricky part with a business named “Joseph McAllen’s Bar & Grill” is that you could not know whether the name fits that criteria (and thus not a fictitious business name) if you did not know that Joseph McAllen owned the bar & grill unless you were to run a fictitious business name search; for all you know, “Joseph McAllen’s Bar & Grill” could be owned by Bar, Inc. (a corporation) or Sally Stevenson (an individual, or “sole proprietor”).

If at this point you have the business’s location nailed down but you don’t know what county the business’s city is in, then search Google. You can search for a question like “What county is [the business’s city], [the business’s state] in?” (For example: “What county is Tustin, California in?”)

Once you know what county you need to do your search in, search for that county’s fictitious business name search tool. An example of this Google search would be: “Orange County California fictitious business name search” (you can also try “Orange County, CA DBA Search” or “Orange County, CA Assumed Business Name Search”). Most county governments allow for online fictitious business name searches, but some smaller counties might require you to call.

Here are some tips for your online Fictitious Business Name Search:

1. If there is a search option for “partial match” or “wild card” or a similar option, then select that option. This will allow you to search for the business name without having the exact name. For example, if you search for “Open Sesame” when the exact fictitious business name is “Open Sesames”, then the partial match search should find “Open Sesames”.

2. If your original search produces zero results, then try searching for variations of the name. For instance, if your search for “Open Sesame” yields nothing, then try options like “Open-Sesame” or “OpenSesame”.

3. If those methods don’t work, try searching for just the beginning of the name. For example, try “Open” instead of “Open Sesame” and scroll through all the names that begin with “Open” to see if you find the business.

4. If you still can’t find the business name, try calling the county government and asking for their help. Sometimes they can search for the business using methods that aren’t available for online searches, such as searching for the business by its address instead of its name.

Did you find the fictitious name you were looking for? If you did, then you have also found the real name of the company—the name of the company that registered the fictitious business name will be included in its information. But it’s still worthwhile to check your work! Try Googling the business by the real, legal name you found, in quotation marks, along with the city it’s located in (Ex: “ACME Can Openers, Inc.” Tustin). Does it still look like the right business? Also, try searching for the legal business name you discovered at the county level in the state’s business records search. You might find out that the legal business name you discovered at the county level had dropped its “Inc.” or “LLC” from its legal name when registering its fictitious name with the county. But if the legal name that you found at the county level in your fictitious name search didn’t include a business type identifier such as “Inc.” or “LLC,” and your search at the state level produced zero results, then don’t worry: This most likely means the business isn’t a corporation, LLC or another type of business required to register at the state level.

At this point, you have done a state business records search and county fictitious business name search. If you still haven’t been able to find the legal name for the business, it most likely means that two things are true:

1. The company you are searching for is not a corporation, LLC, or another type of company that needs to register at the state level

2. It is not operating under a fictitious business name (in other words, the name that you have could still be its real name).

Now, it’s time to do a business license search at the city level.

Business License Search at the City Level

Most cities require businesses operating within them to have a business license. Many bigger cities have an online business license search that allows for you to search for a licensed business by name and address. All cities that require a business license should have a phone number that you can call to perform such a search. To figure out how you can perform a business license search, you can search Google for something along the lines of [business’s city and state] + “business license search” (eg: Huntington Beach, CA business license search).

Here are some tips for your online Business License Search:

1. If there is a search option for “partial match” or “wild card” or a similar option, then select that option. This will allow you to search for the business name without having the exact name. For example, if you search for “Open Sesame” when the exact fictitious business name is “Open Sesames”, then the partial match search should find “Open Sesames”.

2. If your original search produces zero results, then try searching for variations of the name. For instance, if your search for “Open Sesame” yields nothing, then try options like “Open-Sesame” or “OpenSesame”.

3. If those methods don’t work, try searching for just the beginning of the name. For example, try “Open” instead of “Open Sesame” and scroll through all the names that begin with “Open” to see if you find the business.

4. If you still can’t find the business name, try calling the county government and asking for their help. Sometimes they can search for the business using methods that aren’t available for online searches, such as searching for the business by its address instead of its name.

If you are unable to locate a business after looking through multiple levels or have concluded that the business is currently inactive, your last option would be to name the highest-ranking officer (often the owner) of the business as the defendant. In this case, be sure to indicate that the defendant is an individual and not a business.

Learn how to find the legal name of a defendant.

Now that you’ve found the legal name for the business, you need to ensure that you list the business and/or its owners correctly in the lawsuit.

Read more in our guide to small claims court.