Q: I'm suing Sears and their Installer in Small Claims Court. Their installer of an HVAC system became an LLC AFTER causing
(cont) damage to my home. Do I sue the installer under his own name using 'DBA' and his company name without 'LLC' or do I use what is shown on the SOS.CA.GOV website with the 'LLC' and the Agent for the Service of Process?? My process server seems to think that since the damage occurred in 2023 and the installer didn't file to become an LLC until Sept 2024 that I should file to sue him under his name, DBA and business name without using the 'LLC' and not serving an Agent. I don't want the judge to throw it out if it's wrong.
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A:
Based on the timing of events, you should sue the installer under his personal name and his business name (DBA) as they existed when the damage occurred in 2023. Since the LLC formation happened after the incident, the LLC structure doesn't protect the installer from liability for events that happened before its creation. Your process server's instinct is correct on this matter.
The key principle here is that legal entities are responsible for actions that occurred during their existence - an LLC cannot retroactively shield someone from liability for events that happened before its formation. When filing your small claims paperwork, list both the individual's name and their business name as it appeared in 2023 (without LLC).
If you want to be extra thorough, you could include both versions of the business (pre- and post-LLC) on your claim, but this isn't strictly necessary since the damage predates the LLC formation. Keep documentation showing when the LLC was formed (September 2024) to demonstrate to the judge that you're correctly pursuing the business entity as it existed at the time of the incident. This approach should prevent any issues with the judge dismissing your case based on incorrect party naming.
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