Someone named the wrong defendant in a lawsuit and it has made its way to you. It is a bad idea to ignore a lawsuit; you might regret it when you spot a judgment on your credit report or a creditor seizes some of your property. If you fail to appear in court and disregard the case, the court can still issue an order without your presence to defend yourself. First and foremost, inform the court if you are incorrectly named in a lawsuit.
1. Request for Court Order and Answer
The court order and answer form allows you to request the court to issue an order before the trial. It doesn’t resolve the whole case, but instead, it addresses a specific issue that needs resolution before the trial is held. For instance, if someone improperly named you and should you not be a part of the lawsuit, you can request the court to recognize this.
In the case of California, for example, you would need form SC-105. To fill out the form, complete the first page of the two-page document. The person who is suing must complete the second page as a response. Regardless of the state you reside in, some tips to keep in mind are:
- Organize your writing. If you have multiple points to make, use a numbered list with clear headers (bold or underlined).
- Be brief. Make your points directly without rambling or including irrelevant information.
- Be professional. Write formally and double-check your work.
- Last but not least, date the form then print and sign your name.
Make sure not to miss any boxes or forget to sign your name because if the form isn’t completed correctly the court can reject it. This means the court will not hear your case and you will have to try again. You can ask the self-help center to look over your forms and let you know if you missed anything, however, keep in mind that they cannot give legal advice about your case.
2. Call the Courthouse
If you’re close to the trial date and you’re not sure if your document will be processed in time, consider calling the courtroom to alert them of your request.
What number do I call?
To figure out what phone number to call, search online for the courthouse where your trial is located. You will find a general number for the courthouse. It is possible you may reach a recording without an option to speak to a person directly.
What department do I ask for?
Get straight to the clerk you need to talk to by calling the department responsible for your housing your case. Within the courthouse exists many small departments, also known as courtrooms. Each courtroom has its own judicial officer (judge), and each courtroom has its own clerk.
What department was my case assigned to?
Take these steps to find out what department your case is assigned to:
- Search your case number online. The complaint served to you will contain the case number on every page.
- Go to the website for the courts in the county where the lawsuit is.
- For example, if your case is in Orange County you would go to occourts.org
- If your case is in Los Angeles County you would go to lacourt.org.
- Use their case search feature to search your small claims case online to pull up information about the case.
- Each county has its own website for the superior court and each website has its own way of viewing case information online, sometimes called “online case access” or “online case search” or “case access”.
- If there is no feature to search just small claims cases, make sure you use the civil search feature (as small claims court is a sub-category of civil court).
- Once you’ve made it this far, you can see things like any future court dates, filed documents—and importantly, what department the case is assigned to. When you’ve got the department, you can search online for the courtroom directory which gives you a direct line to that courtroom.
Tips for Calling the Clerk of a Specific Courtroom
This clerk is not the judge. Do not go into detail explaining that the plaintiff improperly named you. It is not up to them.
Be polite and brief. These clerks need to manage their time efficiently since they coordinate many cases.
For example (“ Hi, my name is ___ and I am the defendant in case number _______, set to be heard on _____ (date). I have filed an SC-105 because I was improperly named in this case. Does the department have an email address where I may send an electronic version of this document for your convenience?”)
If the clerk provides you with an email address in which to send a copy of your letter, don’t abuse it. Send the one letter and then no more correspondence unless requested of you. A court can hold it against a party when they unnecessarily bother the department clerk and interrupt other cases.
Exercise patience.You might not reach someone on the phone, or response might take a while. Even before the COVID-19 epidemic impacted the courts, high caseloads and limited budgets bogged down courthouses.
Obligation of the court
Maybe the court rejects your documents for errors, or there just isn’t enough time for a judge to review your form before the trial. Fear not, as you can still show up in person and plead your case.
Before starting your argument, the court should verify that the plaintiff improperly named your business. Just as small claims court places rules upon the parties, it places rules on the court.
One of these rules is that in a small claims lawsuit involving a business and the lawsuit is related to the work of that business, the court must ask the defendant about their true legal name. (CCP § 116.560(a)). If the name on the court documents says something different, the court is required to fix it.
What if the court doesn’t fix this?
If the court doesn’t do this—bring it up! Your first instinct may not correct the court if they have your wrong legal name. After all, wouldn’t that protect the other party from actually recovering against you?
In actuality, it would just delay the inevitable—and it could cost you. If someone sues your business and the judge does not verify the true legal name, the plaintiff can come back to court in the future and fix the judgment to reflect the true legal name of your business once the mistake is discovered. When they do this, they could ask the court to impose a fine (called a sanction) against you for intentionally wasting the court’s time.