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I own a company in MD and have been sued by a California Company.

My MD attorney was trying...
I own a company in MD and have been sued by a California Company. My MD attorney was trying to workout a settlement but it looks like we're at an inpasse. The latest extension gives me to 8/27 to file a responsive pleading. The suit is BS and I feel we have a strong case for dismissal. Is it feasible that I fill out form pld-c-010 myself and hire s service to deliver it to the courthouse on my behalf? What happens after the responsive pleading? Oh and they sued and served a dba not our corporate entity so one option would be to allow them to just get the default judgement against the dba. I assume if they want to amend the suit I'd have another 30 days to respond? Thanks in advance for any help
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Answered in 9 minutes by:
8/22/2012
TexLaw
TexLaw, Attorney
Category: Legal
Satisfied Customers: 4,430
Experience: Lead trial/International commercial attorney licensed 11 yrs
Verified

Hi,

Thanks for your question.

Were you sued in California or in Maryland?

When you refer to the form, this is not a uniform form across the nation, so we have a difficult time knowing specifically what you are referring to. Do you have a website that you can give us so that we can look at the form with you?

I look forward to hearing back from you.

-ZDN

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Customer reply replied 5 years ago

Thank you,


 


Sued in California. Here's the url for the form,


http://www.courts.ca.gov/documents/pldc010.pdf


 

I've got a couple more questions.

1. What ties does your business have to California?

2. What is the suit regarding?

3. When they served, who did they serve?

Thanks,

ZDN

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Customer reply replied 5 years ago

Thanks,


 


1. None really.


2. Don't want to say too much in a public forum, but it's essentially breach of contract alleging we agreed to buy goods from a vendor and sell them in a certain condition.


3. The suit is against our DBA but we were served at the actual corporation's place of business.

Thanks for answering my questions.

First of all, the fact that the Plaintiff sued the dba rather than the corporation does most likely have any affect on preventing the Company from being brought into the lawsuit.

Second, because it is a corporation, you cannot represent the corporation pro se. In other words, a Corporation must be represented by an attorney in a California court.

Finally, because you don't have much contacts in California and this is a vendor selling you goods, your corporation may have a claim that it is not under the personal jurisdiction of the California Courts. This sort of challenge is complicated and needs to be addressed by an attorney.

Sorry I can't give you better news.

-ZDN

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Customer reply replied 5 years ago
Can you provide me with a link to the code/rule stating I must have an attorney, (im assuming one licensed in ca?), enter the responsive pleading? And sincd they essentialy sued a non entity does that have a bearing?

Thanks

Hi,

I'd be happy to provide you with that information.

It is a common law rule and is stated as follows:

A corporation has the capacity to bring a lawsuit because it has all the powers of a natural person in carrying out its business. (§ 17; Corp. Code, §§ 105, 207.) However, under a long-standing common law rule of procedure, a corporation, unlike a natural person, cannot represent itself before courts of record in propria persona, nor can it represent itself through a corporate officer, director or other employee who is not an attorney. It must be represented by licensed counsel in proceedings before courts of record. [***5] ( Caressa Camille, Inc. v. Alcoholic Beverage Control Appeals Bd. (2002) 99 Cal.App.4th 1094, 1101-1103 [121 Cal. Rptr. 2d 758] & citations therein.) The same venerable common law rule obtains in federal courts, notwithstanding the comparable federal statute that permits "parties" to plead and conduct their own cases personally. (28 U.S.C. § 1654; [*1146] Rowland v. California Men's Colony, Unit II Men's Advisory Council (1993) 506 U.S. 194, 201-202 [121 L. Ed. 2d 656,XXXXX 716].) The rule exists in most sister states as well, often by statute. (Annot., Propriety and Effect of Corporation's Appearance Pro Se Through Agent Who Is Not Attorney (1992) 8 A.L.R.5th 653 §§ 2, 3, pp. 672, 675.)


CLD Construction, Inc. v. City of San Ramon, 120 Cal. App. 4th 1141, 1145-1146 (Cal. App. 1st Dist. 2004).

Assuming that the DBA that was sued is registered to your corporation,then the plaintiff is not really suing a non-entity. It is suing your corporation, under the DBA. The names of the parties need to be corrected once you have answered. Here is the authority on my answer:

"Use of a fictitious business name does not create a separate legal entity. As an appellate court recently noted, the designation "dba" means "doing business as" but is merely descriptive of the person or corporation who does business under some other name. Doing business under another name does not create an entity distinct from the person operating the business. The business name is XXXXX XXXXX and so too is any implication that the business is a legal entity separate from its owner."
Pinkerton'S, Inc. v. Superior Court, 49 Cal. App. 4th 1342 (Cal. App. 4th Dist. 1996)

But while a corporation may be sued by its fictitious business name, once its true name is XXXXX XXXXX further proceedings should be in the corporate name. Cal. Civ. Proc. Code § 474.

Please rate my answer positively so I might receive credit for my work.

Please let me know if you need more information or want to discuss this issue further.

Best Regards,

ZDN

TexLaw
TexLaw, Attorney
Category: Legal
Satisfied Customers: 4,430
Experience: Lead trial/International commercial attorney licensed 11 yrs
Verified
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