It is not uncommon for litigants, and at times even courts, to confuse the concepts of capacity and standing. However, there is a different between the capacity to sue, which is the right to come into court, and the standing to sue, which is the right to relief in court. Although a plaintiff may have capacity to sue, if the complaint shows that he is not a real party in interest to the claims alleged therein, he lacks standing to pursue those claims.
The distinction is significant as the issue of standing goes to the jurisdiction of the court to hear a claim while capacity is not jurisdictional in nature and instead constitutes a plea in abatement. Contentions based on a lack of standing involve jurisdictional challenges and may be raised at any time in the proceeding. Incapacity, on the other hand, requires a plea in abatement that must be raised at the earliest opportunity or it is waived. The proper time to raise a plea in abatement is in the original answer or by demurrer at the time of the answer. Once a plea in abatement is waived, the defense does not revive except, for example, where the lack of capacity occurred after the time to demur or answer had passed. In that case, the defendant must immediately move for leave to file an amended answer asserting the plea.
Reference Desk
Community Board 7 of the Borough of Manhattan v. Schaffer, 84 N.Y.2d 148 (1994)
Having concluded that the proceeding need not be dismissed for mootness, we turn now to the question presented by the parties for our review: whether petitioner has capacity to bring this proceeding. We note at the outset that the concept of capacity is often confused with the concept of standing, but the two legal doctrines are not interchangeable (see, Matter of Pooler v Public Serv. Commn., 58 AD2d 940, affd on mem below 43 N.Y.2d 750; see also, Matter of Association of Bds. of Visitors of N. Y. State Facilities for Mentally Disabled v Prevost, 98 AD2d 260). “Standing” is an element of the larger question of “justiciability” (see, Society of Plastics Indus. v County of Suffolk, 77 N.Y.2d 761, 769; Matter of Dairylea Coop. v Walkley, 38 N.Y.2d 6, 9). The various tests that have been devised to determine standing are designed to 155*155 ensure that the party seeking relief has a sufficiently cognizable stake in the outcome so as to “cast[] the dispute `in a form traditionally capable of judicial resolution'” (Society of Plastics Indus. v County of Suffolk, supra, at 772-773, quoting Schlesinger v Reservists to Stop War, 418 US 208, 220-221; see, Schieffelin v Komfort, 212 N.Y. 520, 530). Often informed by considerations of public policy (Society of Plastics Indus. v County of Suffolk, supra, at 769), the standing analysis is, at its foundation, aimed at advancing the judiciary’s self-imposed policy of restraint, which precludes the issuance of advisory opinions (see generally, Cuomo v Long Is. Light. Co., 71 N.Y.2d 349, 354).
“Capacity,” in contrast, concerns a litigant’s power to appear and bring its grievance before the court. The concept of a lack of capacity, which has also occasionally been intermingled with the analytically distinct concept of a failure to state a cause of action, does not admit of precise or comprehensive definition (see, Ward v Petrie, 157 N.Y. 301; 4 Weinstein-Korn-Miller, NY Civ Prac ¶ 3211.17). Capacity, or the lack thereof, sometimes depends purely upon a litigant’s status. A natural person’s status as an infant, an adjudicated incompetent or, formerly, a felony prisoner, for example, could disqualify that individual from seeking relief in court (see, Kittinger v Churchill Evangelistic Assn., 239 App Div 253; Garner v Garner, 59 Misc 2d 29; CPLR 1201; but see, Civil Rights Law § 79 [2]; § 79-a [2] [removing disqualification of felony prisoners to sue in court]). Additionally, the capacity question has often arisen in connection with controversies involving trustees (see, Siegel, NY Prac § 261 [2d ed]).
Another category of capacity problems — the category at issue here — arises in the context of suits brought by artificial entities. Business corporations, for example, are creatures of statute and, as such, require statutory authority to sue and be sued (see, Business Corporation Law § 202 [a] [2]; see also, § 1005 [a] [1]; § 1006 [a] [4] [dissolved corporations]; § 1312 [foreign corporations doing business in New York]). Similarly, unincorporated associations, which are voluntary congregate entities, are accorded the capacity to bring suit through their presidents or treasurers by statute (General Association Law § 12; see, Ayew v Hawes & Co., 250 App Div 596).
Firestone v. Galbreath, 976 F.2d 278 (6th Cir. 1992)
Frequently, attorneys and courts confuse the concepts of standing with that of capacity to sue and with the real party in interest principle. 6A CHARLES A. WRIGHT, ARTHUR R. MILLER MARY K. KANE, FEDERAL PRACTICE AND PROCEDURE § 1542 (1990). According to Wright, Miller and Kane, “the real party in interest principle is a means to identify the person who possesses the right sought to be enforced [and] capacity is conceived to be a party’s personal right to litigate in a federal court.” Id.
Standing involves determination whether the plaintiff can show an injury in fact traceable to the conduct of the defendant. See Allen v. Wright, 468 U.S. 737, 104 S.Ct. 3315, 82 L.Ed.2d 556
Friendly Village Community v. Hill, 31 Cal. App. 3d 220 (1973)
There is a difference between the capacity to sue, which is the right to come into court, and the standing to sue, which is the right to relief in court. (Parker v. Bowron
(1953) 40 Cal.2d 344, 351 [254 P.2d 6]; Klopstock v. Superior Court (1941) 17 Cal.2d 13, 18-19 [108 P.2d 906, 135 A.L.R. 318].) Thus, although a plaintiff may have “capacity” to sue, if the complaint shows that he is not a real party in interest and therefore lacks “standing” to sue, a “general” demurrer will be sustained. (Parker v. Bowron, supra, 40 Cal.2d at p. 351 Klopstock v. Superior Court, supra, 17 Cal.2d at p. 19 Dixon v. Cardozo (1895) 106 Cal. 506, 507 [39 P. 857] People v. Haggin (1881) 57 Cal. 579, 587; Oakland Municipal Improvement League v. City of Oakland (1972) 23 Cal.App.3d 165, 170 [100 Cal.Rptr. 29]; Hart v. County of Los Angeles
(1968) 260 Cal.App.2d 512, 516, 517 [67 Cal.Rptr. 242].)
Color-Vue, Inc. v. Abrams, 44 Cal. App. 4th 1599 (1996)
Respondents’ arguments are based on their belief that Color-Vue’s suspension for failure to pay its taxes deprived Color-Vue of standing to prosecute its action. Respondents are mistaken. Suspension of corporate powers results in a lack of capacity to sue, not a lack o standing to sue.[3] (See Hydrotech Systems, Ltd. v. Oasis Waterpark (1991) 52 Cal.3d 988, 994, fn. 4 [277 Cal.Rptr. 517, 803 P.2d 370]; Traub Co. v. Coffee Break Service, Inc. (1967)66 Cal.2d 368, 370 [57 Cal.Rptr. 846, 425 P.2d 790].)
“There is a difference between the capacity to sue, which is the right to come into court, and the standing to sue, which is the right to relief in court.” (Friendly Village Community Assn., Inc. v. Silva Hill Constr. Co. (1973)31 Cal.App.3d 220, 224 [107 Cal.Rptr. 123, 69 A.L.R.3d 1142].) “Incapacity is merely a legal disability, such as infancy or insanity, which deprives a party of the right to come into court. The right to relief, on the other hand, goes to the existence of a cause of action. It is not a plea in abatement, as is lack of capacity to sue.” (Parker v. Bowron (1953) 40 Cal.2d 344, 351 [254 P.2d 6].)[4] Our Supreme Court has specifically stated that “a plea of lack of capacity of a corporation to maintain an action by reason of a suspension of corporate powers for nonpayment of its taxes `is a plea in abatement which is not favored in law [and] is to be strictly construed. . . .’” (Traub Co. v. Coffee Break Service, Inc., supra,66 Cal.2d at p. 370.)
The distinction is significant because a plea in abatement such as lack of capacity to sue “must be raised by defendant at the earliest opportunity or it is waived. . . . The proper time to raise a plea in abatement is in the original answer or by demurrer at the time of the answer. [Citation.] It is a technical objection and must be pleaded specifically. Thus an affirmative defense or demurrer which contains a general assertion that plaintiff has not stated a cause of action does not suffice to raise a plea in abatement. [Citations].” (Vitug v. Griffin
(1989) 214 Cal.App.3d 488, 493-494 [262 Cal.Rptr. 588] Horsemen’s Benevolent Protective Assn. v. Valley Racing Assn. (1992) 4 Cal.App.4th 1538, 1550, fn. 6 [6 Cal.Rptr.2d 698] .)[5] Lack of standing, by contrast, is not waived by failure to timely object. (Parker v. Bowron, supra, 40 Cal.2d at p. 351.) Indeed, lack of standing to sue can be raised at any time, even for the first time on appeal. (See Common Cause v Board of Supervisors (1989) 49 Cal.3d 432, 438-439 [261 Cal.Rptr. 574, 777 P.2d 610].)Based on their incorrect belief that corporate suspension resulted in a lack of standing, respondents argued that Color-Vue was required to prove that it was in good standing with the Secretary of State. Again, respondents are mistaken. Unless required by a governing statute, a plaintiff’s capacity to sue is not an element of a cause of action. (Hydrotech Systems, Ltd. v. Oasis Waterpark, supra, 52 Cal.3d at p. 994, fn. 4.) A plaintiff corporation need not allege that it has qualified to do business in California or that it has paid all of its state taxes. (Ibid.; Alaska Salmon Co.
v. Standard Box Co. (1910) 158 Cal. 567, 570 [112 P. 454].) An allegation by a plaintiff that it is a corporation is sufficient to show that it has the general capacity to sue. (Friendly Village Community Assn., Inc. v. Silva Hill Constr. Co., supra, 31 Cal.App.3d at p. 224.)