I tried to file a John Doe lawsuit in California to subpoena an ISP for user information on an account that was impersonating me. I don't know the persons's name or address, but the social network where I'm being impersonated is here in California.
But the court clerk said I couldn't file a John Doe lawsuit in small claims court. (I put the user's address as the headquarters of the internet company.)
I know the court clerks aren't always right ... could this one have been wrong? Is there a particular statute or court opinion I can show him that says I can file a John Doe lawsuit in small claims court?
I disagree with all other lawyers here.
The answer to the question is yes. However, I would not call them John or Jane Doe. During the process, the court will enquire into the proper identity of the defendants. When it is ascertained who is the proper defendant, the judge will correct the lawsuit to show that the proper person is sued. Generally speaking, look to CCP 116.560(b).
To get around this, name anything that seems correct. The law above permits you and/or the court to correct the name of a defendant.
There is subpoena powers of the small claims court, however, it is a special form and must be stamped by the court. It is SC-107.
-Adam Jaffe Law Office of Adam Jay Jaffe PO Box 2437 Camarillo, CA 93011-2437 (805) 504-2223 www.smallclaimsappeals.com Adam@SmallClaimsAppeals.com This posting is provided for “information purposes” only and should not be relied upon as "legal advice". Nothing transmitted from this posting constitutes the establishment of an attorney-client relationship. Applicability of the legal principles discussed here may differ substantially in individual situations or in different states.
No, you cannot file such a lawsuit in small claims court. The practical reason is that there is very limit time from the time you file the Plaintiff's Claim until the date of the trial to "amend" the complaint. Moreover, you have no one to serve the Plaintiff's Claim on if you do not know the identity or address of the defendant.
California Code of Civil Procedure section 474 permits a plaintiff to allege "Doe" defendants in a complaint when the plaintiff does not know their identity.
If you want to file such a lawsuit, you need to file it in the Superior Court. Code of Civil Procedure section 474 permits a plaintiff who is ignorant of the name of a defendant to designate the defendant by any name in the complaint, but requires the plaintiff to allege that the plaintiff is ignorant of the defendant's name. In addition, Code of Civil Procedure section 474 permits the plaintiff to amend the pleadings when the defendant's true name is discovered.
A plaintiff is deemed to be "ignorant of the name" both when the plaintiff does not know the identity of the defendant and when the plaintiff knows the identity of the defendant but is ignorant of facts giving the plaintiff a cause of action against the defendant. (Dover v. Sadowinski (1983) 147 Cal. App. 3d 113, 116.)
The purpose of Code of Civil Procedure section 474 is to enable a plaintiff to commence an action before the action has become barred by the statute of limitations due to plaintiff's ignorance of the identity of the defendant. (Dieckmann v. Superior Court (1985) 175 Cal. App. 3d 345, 355.)
In order to determine whether a plaintiff is using Code of Civil Procedure section 474 in a valid manner, the inquiry focuses on whether the plaintiff's alleged ignorance is real or feigned. The mere fact that the plaintiff may have known the defendant's identity is insufficient to demonstrate that the plaintiff made improper use of Code of Civil Procedure section 474 to add the defendants as "Doe" defendants. Instead, there must be evidence that the plaintiff had knowledge of facts demonstrating that the plaintiff had a cause of action against the "Doe" defendants.
Frank W. Chen has been licensed to practice law in California since 1988. The information presented here is general in nature and is not intended, nor should be construed, as legal advice for a particular case. This posting does not create any attorney-client relationship with the author. For specific advice about your particular situation, consult with your own attorney.
Debt Collection Attorney
I do not think you can file such a lawsuit in small claims court. This is a very complicated area and I would suggest you hire a lawyer.
Not in small claims court. As Mr. Chen points out, Superior Court would be the proper forum.
The above is general legal and business analysis. It is not "legal advise" but analysis, and different lawyers may analyse this matter differently, especially if there are additional facts not reflected in the question. I am not your attorney until retained by a written retainer agreement signed by both of us. I am only licensed in California. See also avvo.com terms and conditions item 9, incorporated as if it was reprinted here.
Libel / Slander Lawyer
I don't know much about small claims court, but the short answer may be that you simply do not have subpoena power in a small claims action. One of the other lawyers here should correct me if I am wrong on that. It also is an impracticable forum for this kind of suit for the procedural reasons cited by Mr. Chen.