Legal Question in Civil Litigation in California

You are using the word franchise in your question, which is causing your question to be a loaded question. A franchise is not a non existent legal entity. Franchises follow a special set of rules to operate in California, and are regulated by the Franchise Investment Law. These rules are contained in Corporations Code section 31110, and the following sections.

Looking for the name of the franchise at the business entity listing online is not dispositive of whether or not they are a legal entity. Companies that sell franchises in California are required to register with the Secretary of State. You will need to ascertain whether they are in fact a franchise, with the franchise registration maintained by the Department of Corporations http://www.corp.ca.gov/SRD/default.asp.

With that said, if the business is not registered as a corporation, or a partnership in California, then they are most likely a DBA, which attorneys and judges call a fictitious business entity. They may also be what is known as a nonqualified foreign corporation. Unlike suspended corporations, they are not prohibited from suing. When the issue arises, the lawsuit "abates" until they have complied with Corporations Code section 2105. This means the case will get delayed, not dismissed.

You need to find out if the company is listed as a fictitious business name in your county. A real party in interest may sue in their own name, or by any name by which they are known and recognized. The papers you were served with should have set forth what identity the plaintiff was suing under. Generally, the complaint should allege compliance with the fictitious business name statute (Bus. & Prof Code, sec. 17918.) Like nonregistered foreign corporations discussed above, however, this does not give grounds for dismissal, but would only abate the action until they complied.

I hope this answer points you in the right direction.

In my very quick review of the Corporations Code, the only relevant language I found was "a

corporation may sue and can be sued." It does not state that the corporation must be registered with the State. Also, it may not be a corporation but some other type of entitly, although they all should register. I am sure that many businesses are not registered but there is little law if any as to their ability to litigate. So I would assume that the business can sue; even if it can not, its shareholders probably could as they are directly effected by the revenues of the business. You can raise the argument but it is not likely to win. Contact the Secretary of State's Office to see what they know.

Court rules require the parties to list telephone numbers ad addresses where they can be served, so you could move to Strike or demurr on that account, but the court will allow them to correct that. You can sue the F of P by that name and list several does to cover the owners if you do not know their names. If they sue you under that name they can not object to your counter claiming them under that same name.

Just to clear up what the other guys have said: The Secretary of State only registers corporations, Limited Partnerships (which are almost never used anymore), LLC's and LLP's. They do not register or track in any way general partnerships or sole proprietorships. You should look at the complaint against you. It will include in one of the first few paragraphs a statement of what form of company "Franchisename of Phoneycity" is.