A business using a fictitious name must file with the county clerk

Law Offices of Fred M. Duman & Associates 2807 Castro Valley Boulevard Castro Valley, California 94546 Tel: (510) 537-3388 Fax: (510) 889-1114

Dear Mr. Duman:

I am starting my own pool-cleaning business. I have been told that if I use a business name that is not my own, I must file a "fictitious name statement" document with the county. Please explain what is required.

D.K., Hayward

Dear D.K.:

The underlying purpose of a "Fictitious Business Name Statement" is to ensure that the public has some means by which it may discern and/or locate the owners of the business, in the event some sort of liability arises. Failure to file a Fictitious Business Name Statement when required, can have negative consequences.

California's Business & Professions Code, Sections 17900 et seq. requires a business conducted for profit in California under a fictitious business name to file a Fictitious Business Name Statement with the clerk of the county of the principal place of business.

A fictitious business name is a business name, which does not contain the owner(s)í surname and/or which suggests the existence of additional unnamed owners. Words that merely describe the business being conducted, such as "James Smithís Bakery", are not considered "fictitious business names". When the business name implies the existence of more than one owner, it must file a Fictitious Business Name Statement. Examples of "fictitious" names which suggest the existence of additional owners are "James Smith & Company", "...and Sons" ...and Associates", etc.

Registered businesses, such as corporations, limited partnerships, and limited liability companies, are excluded from compliance with the fictitious business name filing requirements, unless such entity conducts business under a name other than than the one which is registered with the California Secretary of State's office.

When required, a Fictitious Business Name Statement must be filed with the appropriate county clerk no later than 40 days from the time the owner commences to transact business. Along with other basic information, the Fictitious Business Name Statement must include the businessí principal address, the names and addresses of the individual owners, the form of business (i.e. corporation, partnership etc.), and the date the business began operating under the fictitious name.

Within 30 days after filing, the statement must also be published, once a week, for four consecutive weeks, in a newspaper of general circulation in the county where the business is located. Thereafter, a new Fictitious Business Name Statement must be filed every five years (although republication is not necessary if there are no changes). Where the business subsequently changes names and/or owners, a new Fictitious Business Name Statement must be filed, pursuant to the procedures set forth above.

A business which has not complied with the fictitious name statute cannot maintain a lawsuit under its fictitious name. However, failure to comply with the fictitious business name laws will not, in of itself, invalidate any contract made under the fictitious business name.

Complying with this law is helpful to protect against another partyís subsequent unlawful infringement and/or misappropriation of the business' name.
Further questions regarding fictitious business names should be addressed to your attorney, for counsel and advice tailored to our readersí specific circumstances.

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