I got sued and was incorrectly named as the Defendant. What can I do?

Updated: Apr 28

The person who brings a lawsuit and files a case is referred to as the plaintiff. This person must not only have a dog in the fight (meaning they are actually involved in the dispute in some way) but have some kind of injury. In law, an injury doesn’t have to be a physical injury. Instead, an injury represents some kind of wrong done to a person. For example, if you are owed money by someone who won’t pay you back, that is an injury for which you can bring a lawsuit. The person who allegedly caused the injury is the defendant.

In some cases, the defendant that was “named” in the suit (meaning the legal documents literally list their name as the defendant) might have been named incorrectly. Maybe the case is against a business but you are being sued personally, or you have no responsibility for the injury that occurred. So how can you tell if you’ve been named properly in a lawsuit?

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Individual vs. a Business

When the parties to a lawsuit are individuals, there is less room to mess up naming the defendant. In these types of cases, it can be easier to tell whom you need to sue.

Consider this example: Pam lends Dwight $2,000 with the understanding that he would pay her back. When he never does, she sues him in small claims court to get her money back. In this case, she knows to name Dwight as the defendant because it is clear that he is the one who was supposed to pay her back but didn’t.

Now look to this next example to see how this straightforward situation becomes a whole lot murkier when a business is involved. Pam sells a killer beet hummus at the local farmers’ market that’s in so much demand that she realizes she has to find a much bigger supply of beets than her local grocery store has in stock. After asking around, she has heard that Dwight sells the tastiest beets this side of the Dnepr River. She looks him up on Google and sees that he has a business called “Beet It and Scram” that’s well-reviewed. She calls Dwight up and he agrees to sell her $2,000 worth of beets. Dwight tells her to go to the Beet It and Scram website to pay for the beets, which she does. But she never receives her beets. When she realizes that she will have to sue to get her money back, whom should she sue? At first, she thinks she should sue Dwight since he is the only one she ever talked to and he is the one whose company never sent the beets. When she tries to find out Dwight’s last name (which would need to be listed in her lawsuit, instead of just “Dwight”), she looks at her credit card statement and realizes that Beet It and Scram is the name that showed up on her credit card statement, not Dwight’s name. So does she sue the company? And if she sues his company, does she just write down “Beet It and Scram” as the company name or does she need to do more research to find out if that is actually the legal name of the business?

Fortunately, Pam is on a good point. By ordering from Beet It and Scram and paying Beet It and Scram, she entered into a contract with Beet It and Scram to send her beets to her. While businesses are owned by and run by people, when you have a legal issue with a business, sometimes the individuals who own and run the business are protected against lawsuits by the business’s structure. In other words, you would need to sue the business itself and not its individual owners. But some types of businesses, like sole proprietorships, do not provide any protection to their owners. For this reason, it is very important to understand not only the legal name of the business but also what sort of business it is – whether it’s the type of business that does shield its owners from a lawsuit or not.

Naming an individual

To be sued individually simply means the plaintiff is suing you and only you. Think back to the example of Pam suing Dwight for the unpaid $2,000. Her lawsuit would name Dwight individually because he’s the only person who owes her the money.

If you go by multiple names, there might be an “a.k.a.” next to your legal name (your given name on your driver’s license).

If your name has a typo, don’t assume you’re in the clear. You should still attend the hearing and the judge should verify your legal name and address if a judgment is entered against you.

Naming a business

Generally, if you’re being sued individually when the case involves your business, there’s a good chance you’ve been named improperly.

Let’s say Ian is the delivery driver at Beets N’ More. Ian was named as a defendant in the dispute between Pam and Dwight over the missing beets. In that scenario, Ian has been improperly named. He’s just an employee of the business—a judge would not order him to pay out of pocket for any damages. Instead, it would be more appropriate to name the company.

The most common reason small claims lawsuits lose is due to failure to properly name a business as a defendant in a lawsuit. Learn more about properly naming business defendants.

Unclear legal responsibility

Sometimes a plaintiff isn’t sure just who exactly is at fault. In this case, they might name multiple people and leave it up to the judge to determine who bears the responsibility.

It’s like when you come home and your three dogs have gotten into your trash. You don’t know if it was just one of them or all of them—you just know that they are all possibly at fault. In the hypothetical lawsuit against all of your dogs, you would name all three and leave it to the court to determine who is responsible.

What should you do if you are incorrectly named?

If you don’t show up to court and ignore the case because you think you’ve been incorrectly named, the court can still make an order without you being there to defend yourself. It’s a bad idea to ignore a lawsuit; you might be regretful when you spot a judgment on your credit report or a creditor seizes some of your property. The first thing you should do if you are incorrectly named in a lawsuit is write to the court.

Write a letter

The name and mailing address of the courthouse where your case is to be heard will be on the first page of the lawsuit. When writing a letter to the court, it’s important to include all relevant information, but in a brief and concise way. At the top of your letter, write your legal name, mailing address, case name, and case number of the lawsuit. Let them know how you have been incorrectly named.

If it’s an obvious mistake, it’s possible the court could dismiss the lawsuit without prejudice. However, once your letter is in the mail, don’t bank on the fact that the court will have time to read it. Courts are incredibly busy and may not have time to get to your letter before your case is heard in front of a judge. You should always prepare to show up to the courthouse on the date of the hearing to plead your case. Before that step, you can also try to call the courthouse.

Call the court

After you write to the court, it is also helpful to give the court a call. When you search online for the courthouse where your case is to be heard, you’ll find a general number for the courthouse. While this is definitely an option to call, it’s not your best one as you may be put on hold and spend a lot of time trying to reach someone. The best way to get straight to the clerk you need to talk to is to call the department where your small claims case has been assigned. Within the courthouse, there are many small departments, which is just another way of saying courtrooms. Each courtroom has its own judicial officer (judge), and each courtroom has its own clerk.

To find out what department your case is assigned to, search your case number online. You’ll find the case number on every page of the complaint you were served with. Once you have that, 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. Each county has its own website for the superior court. Each website has its own way of viewing case information online, sometimes called “online case access” or “online case search” or “case access,” as example. Use this feature to search your small claims case online to pull up information about the case. 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, what documents have been filed—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. Here are some important rules to follow when calling the clerk of a specific courtroom:

  1. This clerk is not the judge. Do not start telling them why or how you were improperly named. It’s not up to them.

  2. Be polite and brief. These clerks are busy coordinating many cases and need to be efficient with their time. For example (“ Hi, my name is ___ and I am the defendant in case number _______, set to be heard on _____ (date). I mailed a letter to the court detailing how I was improperly named in this lawsuit. Does the department have an email address where I may send an electronic version of this letter for your convenience?”)

  3. 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.

  4. You might not be able to get anyone on the phone, or response might take a while. Try to be patient because courthouses are slammed with high caseloads and limited budgets—and this was true before the COVID-19 epidemic impacted the courts.

What if the court asks you to use a court form instead of accepting your letter?

When challenging a lawsuit, it’s a good idea to have backup plans in case things don’t go your way. Let’s say you call the clerk of the court where your lawsuit is, and they won’t accept your letter but ask you to file court documents. Different departments can have different rules that best fit the way the department does business. Don’t get frustrated. There is a court form you can complete and file.

Request for Court Order and Answer (SC-105)

This is a simple form to use to ask the court to make an order before the trial. It’s not used to resolve the whole case, but rather a specific issue that should be addressed before the trial is held. For instance, if you were improperly named and should not be a part of the lawsuit, you can request the court to make an order that you have been improperly named.

To fill out the form, complete the first page of the two-page document. The second page is for the person who is suing you to complete as a response. Here is the form is broken down:

  1. This is where you fill out your information, as the person requesting the court to make an order.

  2. This is where you fill out the information of the other party (or parties) in the lawsuit. List the name and address of each party. This form has to be given to all of the parties to the lawsuit. The bottom of section 2 will ask you whether you gave it to them by mail, or in person, and on what date.

  3. This section is where you explain what you want the court to do (i.e. dismiss you from this lawsuit because you have been improperly named).

  4. This section is where you explain why you want the court to make the order. Explain to them how you have been named incorrectly (what you would have written in the letter mentioned above). If you need more space, there are directions for how to include an attachment. If you do use an attachment, here are some tips:

  • 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 you don’t miss any boxes or forget to sign your name because if the form isn’t completed correctly the court can reject it. This means your request won’t be heard and you’ll 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, they cannot give legal advice about your case, so keep that in mind.

Obligation of the court

Maybe the court doesn’t receive your letter or there just isn’t enough time to get a letter to the judge before the hearing. Fear not, as you can still show up in person and plead your case. If you’re there to argue that your business has been improperly named, the court should verify this before you even start your argument. Just as there are rules placed upon the parties in small claims court, there are also rules which apply to the court itself. 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 do this?

If the court doesn’t do this—bring it up! It might be your first instinct not to 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 your business has been sued 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.

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