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A statute of
limitations, a time period in which you must file a claim, depends on what
kind of case your claim involves. You can think of it as the expiration
date on your claim. While the rules affecting the statute of limitations
are complicated and may be extended in your case, the following are some
examples of common types of claims:
Personal injury
Two years from the
date of injury, or in the case of a minor, two years from the eighteenth
birthday. If the injury is one that could not be discovered immediately,
then you have two years from the date you first discovered it.
Oral contract
Two years from the
date the other party broke the contract.
Written contract
Four years from the
date the other party broke the contract.
Assault and battery
One year from the
date of the incident.
Fraud or
mistake
Three years from the
date of discovery.
Damage to
personal property
Three years from the
date the damage was done.
Before you can sue a
government entity, you must first file a written claim with the entity.
For personal injury or damage to personal property, you have only 6 months
from the date of injury to file the claim. For breach of contract or
damage to real property, you must file the claim within 1 year. After the
entity rejects your claim (sends you a "Right to Sue" letter), you must
normally file a lawsuit within 6 months from the date of that letter.
You should file your
lawsuit in the proper county or judicial district. The proper place, or
venue, is determined by several considerations. The most important
factor, and the most proper place, is where the defendant person resides
or where the defendant entity has a principal place of business.
Other factors
considered are:
◦Where the accident
occurred (in a car accident case);
◦Where the contract was entered into, where it was to be performed or
where the you were to be paid (in a contract case);
◦Where the consumer signed the contract, where the consumer resided when
the contract was signed, where the consumer resided at the time of filing
the claim, or where the purchased good are permanently kept (in a consumer
debt case).
When you are filing
a suit against a state agency, you may file in any county where there is
an office of the California Attorney General - Sacramento, San Francisco,
or Los Angeles.
If you wish to
re-file in the correct venue, you can dismiss your case and bring the
lawsuit in the proper venue. The court in the proper venue will charge you
a new filing fee.
If the defendant
challenges venue by either writing to the court or at the trial, and the
court agrees that the venue is not correct, your case will be dismissed
without prejudice and you will be allowed to file your claim in the proper
venue.
The defendant may
also not challenge venue and the court may overlook the venue problem, in
which case you may proceed with your claim against the defendant.
Whether you are a
plaintiff or a defendant bringing a countersuit, you must first make your
demand to the other party, if it is practical to do so, before you can
file your claim. Since you may have to show proof you have done so, you
should make that demand in writing and send it by certified mail and
request a return receipt.
You can file by mail
submitting forms. For an initial lawsuit, you need to submit both
Plaintiff's Claim and Order to Defendant (Form SC-100). To file a
countersuit, you must submit
Claim of Defendant (Form SC-120). You can
either (1) download these forms over the Internet by clicking on any link highlighted in
blue,
(2) request that they be sent to you by mail by sending a self-addressed,
stamped envelope to the clerk’s office at 1426 South Drive, Hanford, CA
93230 or (3) by picking them up in person at the same office.
Complete the forms
and enclose them along with a check for $22.00, made payable to "Kings
County Superior Court." If you want the court the attempt service of
process for you through certified mail, enclose a request note and add
$10.00 for each defendant that you want to be served by mail or you can
file you claim in person.
You should know the
name and address of each defendant, as well as how much you are suing for
and why.
When you are suing a
corporation, a limited partnership (LP), or a limited liability company
(LLC), then you will need to know the name and address of the defendant
entity’s agent for service of process. Contact the office of
the California Secretary of State at 1500 11th Street,
Sacramento, California 95814 or access their Internet website at
www.ss.ca.gov for that
information.
No. You must present
your evidence at the time of the trial.
You must provide the
full name of your defendant. This is important when you are trying to
collect a judgment in your favor. If you do not know the defendant's name,
you name that defendant as "John Doe" or "Jane Doe", especially when the
statute of limitations is running out on your claim. However, you must
later modify your claim to state the defendant's true name.
Some examples of
naming a defendant are:
Individual
Write the full name.
Add the middle name or initial if you know it. In case of a minor or a
mentally incompetent defendant, you must name both the defendant and the
guardian ad litem. For example, write "Teddy Behr, a minor by and through,
John Smith, guardian ad litem."
Sole proprietorship
Indicate both the
owner and the business. For example, name the defendant "John Smith,
individually and doing business as Smith Towing." If you win, then you can
collect against either John Smith's personal assets or Smith Towing's
business assets, or both.
General partnership
Sue both the
individual partners and the business partnership. For example, name the
defendant "John Smith and Jane Smith, individually and doing business as
Smith Towing." You may also sue the individual partners and the business
partnership separately.
Limited partnership
Sue the general
partner and the business partnership, either together or separately. For
example, sue "John Smith, a general partner, individually and doing
business as Smith Towing, L.P.," or sue both "John Smith, a general
partner" and "Smith Towing, L.P."
To find information
on a limited partnership, contact the office of the California Secretary
of State at 1500 11th Street, Sacramento, California 95814 or
access their Internet website at
www.ss.ca.gov for that
information.
Corporation
Sue the corporation,
not the officer or the employee you have been dealing with. If a
corporation is the owner of a business that caused you harm, then treat
the corporation as the individual owner of a sole proprietorship. For
example, sue "Smith Auto, Inc." or "Smith Auto, Inc., individually and
doing business as Smith Towing."
You will also have
to provide the name and address of the agent for service of process.
This is a person or a company the corporation has designated to receive
lawsuit papers on its behalf. Contact the office of the California
Secretary of State at 1500 11th Street, Sacramento, California
95814 or access their Internet website at
www.ss.ca.gov for that
information.
You can contact the
Business Licensing Office of either the city or county in which the
business is operating.
The office of the
Secretary of State of California, located at 1500 11th Street,
3rd floor, Sacramento, California 95814, maintains records of
corporations (Inc., Ltd.), limited liability companies (LLC), and limited
partnerships (LP), including information on their agents for service of
process. You can access the information online over the Internet at their
Internet Web Site at
www.ss.ca.gov for that information.
Write the correct
name on the
Request to Amend Party Name (SC-114) and submit it to the
court clerk. Indicate that you are amending the claim to correctly name
the defendant. Such a declaration may be either mailed or hand-delivered
to the court.
You must file the
dismissal forms -
Request for Dismissal (Form 982(a)(5)) and
Notice of
Entry of Dismissal and Proof of Service (Form 982(a)(5.1)) - then have the
copies of the forms sent by mail to each of the defendants that had been
served. The non-party person who serves by mail for you must then complete
the Proof of Service portion of the Notice of Entry of Dismissal and
return the signed original to the court clerk's office.
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