Sample special demurrer for lack of capacity in California.

This sample demurrer for lack of capacity in California is filed under Code of Civil Procedure section 430.10(b) on the grounds of lack of capacity to sue.

The sample is designed to be used in several situations such as,

• (1) Plaintiff is a California Corporation or Limited Liability Company that has been suspended for nonpayment of the franchise tax and lacks the capacity to sue or defend pursuant to Revenue & Taxation Code § 23301;
• (2) Plaintiff is a California Corporation that has been suspended for failure to file the biennial statement required by Corporations Code § 1502;
• (3) Plaintiff is a foreign corporation or limited liability company that has failed to obtain a“certificate of qualification” from the California Secretary of State as required by Corporations Code § 2105 and therefore may not “maintain any action or proceeding commenced prior to compliance with Section 2105” upon intrastate business as specified in Corporations Code § 2203(c), and
• (4) Plaintiff is a foreign corporation or limited liability company that has been suspended in its home state for nonpayment of franchise taxes.

The sample has been revised and updated in 2019, is 20 pages and includes,

• Brief instructions,
• Memorandum of points and authorities with citations to case law and statutory authority,
• Sample request for judicial notice,
• Sample declaration regarding compliance with meet and confer requirements of Code of Civil Procedure section 430.41, and
• Proof of service. 

The author is an entrepreneur and retired litigation paralegal that worked in California and Federal litigation from January 1995 through September 2017 and has created over 300 sample legal documents for sale.

Note that the author is NOT an attorney and no guarantee or warranty is provided.