Legal Question in Construction Law in California

I am a contractor who installed a stained concrete floor for a homeowner. After a few weeks the floor developed problems. Before I was given a chance to fix it the homeowner took me to arbitration and won. Now I want to sue for breach of contract, since I was not allowed to do a warranty repair. The wrinkle is that as a sole prop the contract was not in my personal name, but in a dba, which I hadn't registered until later in the year. Does this mean I have no case?

Thanks in advance


Asked on 1/01/11, 6:34 pm

2 Answers from Attorneys

The fact that you entered into the contract using a DBA can probably be over come. I assume you personally signed the contract. You should able to name yourself as the plaintiff. The fact that you lost the arbitration is the bigger problem.

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Answered on 1/07/11, 11:17 am
Bryan Whipple Bryan R. R. Whipple, Attorney at Law

No; according to Business & Professions Code section 17918:

"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......"

Therefore, once you have filed and published your DBA statement, your suit may proceed.

However, the information you provided regarding an arbitration raises two more serious questions. First, the existence of an arbitration clause in your contract very likely will cut off your right to bring a lawsuit for breach of the contract. Then, the fact that an arbitration has already taken place may have a "res judicata" effect (i.e., the matters have already been decided).

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Answered on 1/07/11, 1:04 pm


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