A general demurrer is made on one of two grounds, failure to state facts sufficient to constitute a cause of action, and the Court lacks subject matter jurisdiction. The grounds for a general demurrer are never waived. See Code of Civil Procedure § 430.80.
Code of Civil Procedure § 430.10 states, in pertinent part: "The party against whom a complaint or cross-complaint has been filed may object, by demurrer or answer as provided in section 430.30, to the pleading on any one or more of the following grounds...(e) the pleading does not state facts sufficient to constitute a cause of action.
The failure of the pleading to state a cause of action results from the fact that the complaint appears deficient on the face of the pleading or from judicially noticed matter. Hall vs. Chamberlin (1948) 31 Cal.2d 673, 679-680.
Section 425 of Code of Civil Procedure states that a complaint must contain "a statement of the facts constituting the cause of action in ordinary and concise language". A complaint must contain facts which are sufficiently clear and specific to inform both the Court and parties of the nature of the claim and the factual basis of the claim. Code of Civil Procedure §430.10.
Except as otherwise provided by statute, "every action must be prosecuted in the name of the real party in interest . . ." Code of Civil Procedure § 367; Cloud v. Northrop Grumman Corp. (1998) 67 Cal.App.4th 995, 1004.
Generally, the real party in interest is the person who has the right to sue under the substantive law. It is the person who owns or holds title to the claim or property involved, as opposed to others who may be interested or benefitted by the litigation. Gantman v. United Pac. Ins. Co. (1991) 232 Cal.App.3d 1560, 1566.
The real party in interest requirement goes to the existence of a cause of action; i.e., whether plaintiff has a right to relief. Lack of standing is not waived by failure to object. Pillsbury v. Karmgard (1994) 22 Cal.App.4th 743, 757-758.
The purpose of the real party in interest requirement is to assure that any judgment rendered will bar the owner of the claim sued upon from relitigating. "It is to save a defendant, against whom a judgment may be obtained, from further harassment or vexation at the hands of some other claimant to the same demand." Giselman v. Starr (1895) 106 Cal. 651, 657; see also Cloud v. Northrop Grumman Corp. supra at 1003.
For instance, a plaintiff who unintentionally failed to schedule her prepetition claim for wrongful termination as an asset in her bankruptcy action lacked standing to sue. However, the defect could be cured by substituting the bankruptcy trustee as the real party in interest or obtaining the trustee's abandonment of the claim. Judicial estoppel does not arise absent a finding of bad faith. Cloud v. Northrop Grumman Corp., supra at 1002-1003; see also Kelsey v. Waste Management of Alameda County (1999) 76 Cal.App.4th 590, 599.
When a party lacks standing to sue, the action must be dismissed, unless the complaint can be amended by substituting a party who has standing. Cloud v. Northrop Grumman Corp. supra at 1004-1011.
If a plaintiff clearly does not have standing to sue than a general demurrer on that basis should be filed.
Attorneys or parties in California who wish to purchase a sample demurrer to a complaint for California based on lack of standing can click below.
http://www.scribd.com/doc/97255471/Sample-Demurrer-to-Complaint-for-Lack-of-Standing-in-California
The author of this article, Stan Burman, is a freelance paralegal who has worked in California litigation since 1995.
The author of this blog post, Stan Burman, is an entrepreneur and freelance paralegal that has worked in California and Federal litigation since 1995 and has created over 300 sample legal documents for California and Federal litigation.
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