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Fictitious business name question

San Luis Obispo, CA |

Code of Civil Procedure sec 116.430(b) states that an action filed by a person who has not complied with the applicable fictitious business name laws (etc.) shall be dismissed without prejudice.
Does anyone know of a similar law that relates to unlawful detainer actions or unlimited jurisdiction cases?

Attorney Answers 2


California Code of Civil Procedure section 367 states that "[e]very action must be prosecuted in the name of the real party in interest, except as otherwise provided by statute." (Cloud v. Northrop Grumman Corp. (1998) 67 Cal.App.4th 995, 1004.)

The real party in interest 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.)

A complaint filed by someone other than the real party in interest is subject to general demurrer if the defect appears on the face of the complaint, i.e., it fails to state a cause of action by the plaintiff because the claim sued upon belongs to somebody else. (Carsten v. Psychology Examining Comm. Of Bd. of Med. Qual. Assur. (1980) 27 Cal.3d 793, 796.)

Generally speaking, a defendant would have to file a demurrer challenging the plaintiff's right to sue on one of the following two basis:

Special Demurrer based on Capacity to Sue:

A special demurrer can be filed on the ground that “[t]he person who filed the pleading does not have the legal capacity to sue.” (Code Civ. Proc., § 430.10(b).) “Legal capacity to sue” usually refers to the party being a minor, deceased, or having been adjudicated incompetent or insane. Plaintiff's lack of capacity to sue should appear on the face of the Complaint.

General Demurrer based on Lack of Standing to Sue:

If plaintiff's lack of standing to sue appears on the face of the complaint or from matters judicially noticeable, a general demurrer lies for failure to state a cause of action in this plaintiff (although a cause of action is stated in favor of someone else). (County of Fresno v. Shelton (1998) 66 Cal.App.4th 996, 1009.)

See also:

Frank W. Chen has been licensed to practice law in California since 1988. The information presented here is general in nature and is not intended, nor should be construed, as legal advice for a particular case. This posting does not create any attorney-client relationship with the author. For specific advice about your particular situation, please consult with your own attorney.

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California Business and Professions Code section 17918 provides that "no person transacting business under a fictitious 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."

Depending on the facts and relevant agreement(s), a defendant may have a right to a motion to abate an action (or perhaps to request dismissal without prejudice in the alternative) if a plaintiff should have complied with the statute but did not do so.

Answers on this site are only intended to provide general information. No attorney-client relationship is intended. Specific legal advice is only provided after a personal meeting in which detailed information about a client's particular circumstances and goals are obtained.

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