'Notice to the Person Served' for Business Defendants

If this capacity notice is left blank, no default judgment may be taken (CCP 412.30). If marked incorrectly you might wind up with an unenforceable judgment because the business name and/or structure doesn't match titles to assets, or even a case thrown out because the defendant was incorrectly identified/served.

As a process server, I don’t like being put in that position. I may have marked a few capacity notices incorrectly, with the best of intentions. To be safe, it's better if the attorney, who should know the identity and structure of the defendant, marks the capacity notice or instructs the process server in writing how it's to be marked.

For “individual” defendants, it’s obvious and easy. But what about business defendants?

If you’re stuck on how to mark the capacity notice, that’s a sign you may need to go back and identify that business defendant. Then, marking the capacity notice should come easily:

• For a sole-proprietor, like Chad Cool dba Cool Construction, check box 1, “as an individual defendant.”  

• Don’t confuse box 2’s use of the term “fictitious name.” This is not necessarily related to fictitious business names and sole-proprietors. Box 2 is better used to name Doe defendants (CCP 474).

• For all other business structures, check box 3 “on behalf of” and input the name of the defendant exactly as named at the top of the summons. Then check the correct structure from the options given. If there’s an uncommon “other” category you need to research, be extra glad you didn’t leave this to the process server.

Also be sure to determine who is authorized to accept service and where the business is currently located.