Legal Question in Business Law in California

Lawsuits Involving Businesses -California

CA B&P Code Section 17900(a)(1) exempts an individual, using their surname in their business name, from having to file a Ficititious Business Name Statement (DBA).

However, some banks will not open a business checking account unless you have filed a DBA.

Also, some Court Clerks insist that (according to California Law) in order for a business to be party to a lawsuit, either as plaintiff or defendant, the suit must name the individual + DBA

company's name.

Apparently, these court clerks are advising the banks that any person doing business must have an official DBA on file.

To my understanding, I think they're mixing apples and oranges. I can ubderstand them wanting the company's name to be entered (clerically speaking) as a party to the lawsuit, but I don't think that it demands that each and every business, in the state of California, file an official FBN-DBA.

That ''flies in the teeth'', of the intent, of the above mentioned B&P Code Section.

Am I correct, or not?

Also, would you cite the section of California law that does, in fact, require the individual's name and the term DBA and then the company's name to be present on the party line?

Thank you, in advance


Asked on 1/18/07, 8:08 pm

1 Answer from Attorneys
Bryan Whipple Bryan R. R. Whipple, Attorney at Law

Re: Lawsuits Involving Businesses -California

I cannot verify what you say about some banks and some court clerks. My bank didn't give me any static about opening a business account for my law practice, which operates under a name containing my surname.

Keep in mind that a "DBA" and a "fictitious business name" are NOT the same, although there is some overlap. For example, "Bryan R. R. Whipple, Attorney at Law" is my DBA, but it is not a fictitious business name requiring a filing.

Court clerks should not be critiquing the names on lawsuits they file. Only the person filing the suit can be expected to know the names of the plaintiff(s) and defendant(s). Further, there is a famous case holding that a suit naming the real person is as valid as a suit naming the DBA, and vice-versa. "Doing business under another name does not create an entity distinct from the person operating the business." Pinkerton's, Inc. v. Superior Court (1996) 49 Cal.App.4th 1342. The Pinkerton's court said if a suit named Mark Twain as defendant, and Samuel L. Clemens showed up in court, a judgment against Clemens would be valid even though the complaint named only his pen name.

Best practice is to sue in the form "Samuel L. Clemens, d/b/a Mark Twain" but under Pinkerton's, it makes no difference. An even broader principle, used to explain the idem sonans rule (where a suit against Elliot is also valid against Eliot and Elliott, for example), is that the complaint and summons are valid if the person receiving them should logically be able to understand that they are aimed at him. It's all a question of due process.

There is a related rule that a business operating under a fictitious name cannot sue in the fictitious name or on any contract or obligation due it under the fictitious name while it is not in compliance with the B&P filing and publication requirements. See B&P Code section 17918.

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Answered on 1/18/07, 8:59 pm


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