Lack of standing to sue in California as the grounds for a general demurer

Lack of standing to sue in California as the grounds for a general demurer is the topic of this blog post.

The term standing to sue means the right to obtain relief in Court.

A general demurrer in California 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.

Code of Civil Procedure § 425 states in pertinent part that a complaint must contain “a statement of the facts constituting the cause of action in ordinary and concise language.”

In order to file a general demurrer to a complaint in California on the grounds of lack of standing requires that plaintiff’s lack of standing is either apparent from the allegations of the complaint, or on facts that are subject to judicial notice.

A complaint “must allege the ultimate facts necessary to the statement of an actionable claim.” Careau & Co. v. Security Pacific Business Credit, Inc. (1990) 222 Cal.App.3d 1371, 1390.

In order to have standing to sue and the right obtain relief in court, plaintiff must be the “real party in interest” with respect to the claims sued upon.

Code of Civil Procedure § 367 states that, “Every action must be prosecuted in the name of the real party in interest, except as otherwise provided by statute”; see also 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 benefited 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;  American Alternative Energy Partners II, 1985 v. Windridge, Inc. (1996) 42 Cal.App.4th 551, 559.

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 accidentally 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.

The California Supreme Court has ruled that in order to avoid the sustaining of a demurrer without leave to amend, a Plaintiff must show in what manner they can amend the complaint, and how that amendment will change the effect of their complaint.

A plaintiff seeking to avoid the sustaining of a demurrer without leave to amend to a complaint for a defect in pleading must show in what manner he can amend his complaint and how that amendment will change the effect of his pleading. Goodman v. Kennedy (1976) 18 Cal.3d 335, 349.

An experienced litigation attorney can evaluate your situation and determine if filing a general demurrer to a complaint for lack of standing in California is an appropriate response.  Contact attorney Nathan Mubasher for a consultation and evaluation of your case.

Experienced litigation attorney in the Inland Empire.

Schedule a consultation today with attorney Nathan Mubasher.

Call (800) 691-2721 and let’s talk about your options.


Law Offices of Nathan Mubasher
2621 Green River Rd, Ste 105 PMB 403
Corona, CA 92882
tel 1-800-691-2721 | fax 1-310-356-3660


Thank you for reading. I hope I could have been educational as I endeavor to provide my knowledge as a free public service. Please note that all the materials and information on this blog are general analyses made available for the public’s general informational purposes only. These analyses are not in any way intended to serve as specific legal advice to be applied in your particular situation. Although I am an attorney, absent a signed retention and engagement letter, I am not your attorney. There are no exceptions to this rule. Moreover, you shall not rely on the information I am providing you, as it is only for your general knowledge and educational purposes, since this information would likely change based on any additional facts. Thus the transmission and receipt of information on this blog by anyone does not form or constitute an attorney-client relationship. My knowledge of laws is limited to California. Anyone receiving any information on this blog should not act upon the information provided without first obtaining the services of professional legal counsel licensed in their respective jurisdiction. Best of luck.


Author: nathanmubasher

Attorney Nathan Mubasher earned a post-doctorate LL.M. in International Financial Transactions with emphasis on Money Laundering and Compliance at Thomas Jefferson School of Law, a J.D. at American College of Law, and his B.A. at University of California, Riverside. He is a member of the State Bar of California and is admitted to practice before all state and federal courts in California. He is also an active member of the American Health Lawyers Association and the California Society for Healthcare Attorneys. He has performed over 1,000 mediations and has Alternative Dispute Resolution (ADR) training from the United Nations Institute for Training and Research (UNITAR).

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