Legal Question in Civil Litigation in California

Compliance with the fictitious name statute is required if a DBA is going to file suit in its name on a contract or transaction. "No person transacting business under a fictitious business name contrary to the provisions of this chapter, or his assignee, may maintain any action upon or on account of any contract made, or transaction had, in the fictitious business name in any court of this state until the fictitious business name statement has been executed, filed, and published as required by this chapter. For the purposes of this section, the failure to comply with subdivision (b) of Section 17917 does not constitute transacting business contrary to the provisions of this chapter." (Bus. & Prof. Code, section 17918.)

http://law.onecle.com/california/business/17918.html

This must be plead in the complaint. If you are suing in small claims, I believe that there is a box that you check for compliance with the fictitious name statute. I.e., "John Smith is now and at all times herein mention was engaged in business under the fictitious name, 'The Pocahontas Lodge and Grill', and has filed the statement and published hte notice required by California Business and Professions Code section 17918."

I have never heard of someone suing in the business name only, as the individual name is usually included.

Also note that the statute only requires compliance before maintaining an action on a contract or transaction. Failure to file a fictitious business name statement does not bar commencement or maintanance of a tort action by a party doing business as a DBA.