Capacity to Suecapability.jpg


Capacity to sue is the right to come into court [Parker v. Bowron (1953) 40 Cal. 2d 344, 351, 254 P.2d 6; Friendly Village Community Assn., Inc. v. Silva & Hill Constr. Co. (1973) 31 Cal. App. 3d 220, 224, 107 Cal. Rptr. 123; see also Klopstock v. Superior Court (1941) 17 Cal. 2d 13, 18-19, 108 P.2d 906]. All persons have the capacity to sue unless limited by statute. This includes corporations, unincorporated associations, partnerships, and public entities [see Code Civ. Proc. § 369.5(a) (unincorporated associations and partnerships); Corp. Code § 207 (granting corporations all the powers of a natural person in carrying out their business activities); Gov. Code § 945 (public entities)].

Minors, insane or incompetent persons, and persons for whom a conservator has been appointed, for example, lack capacity to sue in that they are generally required to sue through a guardian or conservator of their estate or a guardian ad litem appointed by the court [Code Civ. Proc. § 372; see also Klopstock v. Superior Court (1941) 17 Cal. 2d 13, 18, 108 P.2d 906]. The appointment of the guardian, conservator, or guardian ad litem should be alleged in the complaint.

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"This is . . . for the average man [and woman] and its purpose is to try to plant in his [and her] head, at the least, a seed of skepticism about the whole legal profession [service], its works and its ways.

* * *

If only the average man could be led to see and know the cold truth about the lawyers and their Law. With the ignorance would go the fear. With the fear would go the respect. Then indeed – and doubtless in orderly fashion too – it would be: —

Woe unto you, lawyers!"

Fred Rodell, Woe Unto You, Lawyers! 1939. Professor of Law, Yale University

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