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Thomas McJD
Thomas McJD, Attorney
Category: Business Law
Satisfied Customers: 6516
Experience:  Experienced in Corps, LLCs, Partnership, etc.
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I am a California construction contractor and I have been served

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I am a California construction contractor and I have been served with a summons and complaint in Alameda county ca. for breach of written contract and negligent misrepresentation. I am preparing the answer but have noticed that the complaint is Not varifyed and the listed plaintiff is the business entity which is a California sole proprietor. the individuals name that is the DBA for this entity is no where to be found in the moving papers....is this ok?

TMcJD :

Hi, I will be happy to assist you, and it is my goal to make you a very satisfied customer! This may take a few minutes, so thanks for your patience.

TMcJD :

Most complaints do not need to be verified. As far as the other issue -- if the company is only a d/b/a for an individual sole proprietor business, then the company has no separate legal existence from the individual. That means that the individual person is the real party in interest and should be named in the complaint as the plaintiff. You could make a motion to dismiss for lack of capacity to sue.

Customer:

My answer was due on April 28 so I am late with my answer and plaintiffs counsel is threatening to take my default. Does that change your answer and if not what is the motion called? A summery judgment? The complaint has also been amended once already as plaintiff counsel failed to attache or state the terms of the contract in the original complaint!

TMcJD :

You need to file a motion for extension of time to file an answer or other responsive pleading first - so your answer and motion can't be considered late.

TMcJD :

Then, once you get the order extending time, you would file a motion to dismiss for lack of capacity to sue.

TMcJD :

If your construction company is a corporation or LLC or other entity that has a legal existence separate from you, you have to have an attorney to file these documents on your behalf. Unless you're an attorney, you cannot represent a corporation/LLC, etc. (with some exceptions for small claims cases).

Customer:

I am a sole proprietor.....sounds like it might be easier just to answer the complaint?

TMcJD :

You could do that, but the plaintiff may move to strike for being filed out of time. Then you'd have to go back and make the motion for extension of time anyway.

Customer:

can I file the motion to dismiss after I file the answer? Does the plaintiff even have standing to take my default?

TMcJD :

You generally waive your right to file a motion to dismiss if you do not reserve the right in your answer. In most cases, if you plan to file a motion to dismiss, you file the motion in lieu of filing an answer. But the plaintiff is likely to respond and contest the motion to dismiss as untimely if you don't make a motion for extension of time first and get an order extending the time.

TMcJD :

You would best be served by retaining local counsel. Rules on defending yourself in a lawsuit are very complex and you're at high risk of letting the plaintiff get a judgment against you if you're not adequately represented.

Customer:

Ok. I will do that..thank you

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