Parties

• Author: Robert F. Kane/Donald G. Rez
• Pages: 541-702

Chapter 12

Parties

QUICK VIEW

Definitions:

Party: Parties to a lawsuit are the persons or entities who are suing or being sued in the action. Only the

parties are entitled to participate directly in the proceedings.

Capacity to Sue: Capacity is the right of a person or entity to sue or be sued.

Standing to Sue: To assert a legal claim, a person or entity must have standing to do so, i.e., a sufficient stake

in the outcome of the claim.

Joinder: The addition of parties to a lawsuit, either when the action is filed or later, is called joinder. Joinder

may be either necessary or permissive.

Interpleader: In an interpleader action, two or more adverse claimants to a particular item of property (the

“stake”) contest the right to property held by a stakeholder, who acknowledges that one of the claimants

is entitled to the property. The purpose of the action is to determine who is entitled to receive the stake.

Scope of Chapter: Capacity to sue, be sued, or defend. Standing to sue. Joinder of parties (necessary and per-

missive). Interpleader actions. Intervention in an action. Third Party Practice. Class actions.

Strategies and Tactics:

• Early in the case, evaluate who might be possible plaintiffs and possible defendants in the action.

• Research the law concerning the capacity of potential parties, their standing to sue or be sued, etc.

• Investigate the status of various parties, their capacity, standing, etc., and whether they are amenable to

service of process in California.

• If representing a defendant, investigate whether there are other parties who should be joined as defendants,

and whether there are other parties who may be responsible for all or part of plaintiff’s claim.

• If an action is already proceeding, determine whether it is in your client’s interest to intervene in the action,

and whether your client is entitled to do so.

• If you represent a client who retains property to which some other party is ultimately entitled, determine

whether an interpleader action, with your client as stakeholder, is an appropriate way for your client to

discharge his/her obligations.

• If there are a large number of potential plaintiffs, determine whether a class action is appropriate.

California Pretrial Practice & Forms 12-2

Statutes and Rules: CCP §§367-369.5, Parties Generally; CCP §§372-376, Infants and Incompetents; CCP

§§378-379.5, 428.10, Permissive Joinder; CCP 389-389.5, Compulsory Joinder; CCP 386-386.6, Interpleader;

CCP 387-388, Intervention; CCP §§428.10-428.70, Third Party Cross-complaints; CCP §§382-384, CRC 3.760-

3.771, Class Actions.

Related Topics: Taking the Case, Ch 1; Presuit Activities, Ch 2; Pleadings, Ch 13; Motions, Ch 14; Attacking

the Pleadings, Ch 15.

Forms in Digital Access: See digital access for the following forms:

• Form 12:10 Application for Court Approval of Dismissal of Putative Class Action.

• Form 12:20 Plaintiff’s Declaration in Support of Application for Court Approval of Dismissal of Putative

Class Action.

• Form 12:30 Proposed Order Approving Dismissal of Putative Class Action.

12-3 Parties

TABLE OF CONTENTS

I. GENERAL POINTS

§12:01 Party Defined

§12:02 Typical Parties

§12:03 Action Must Be Prosecuted in Name of Real Party in Interest

§12:04 Standing Requirement

§12:05 “Capacity” Defined

§12:06 Distinction Between Capacity and Standing

§12:07 Waiver

II. CAPACITY TO SUE OR BE SUED

A. MINORS, THE UNBORN OR UNASCERTAINED, AND INCOMPETENTS

1. Definitions

§12:20 Minors

§12:21 Unborn or Unascertained

§12:22 Incompetents

2. Lack of Capacity

§12:30 Must Appear Through Guardian

§12:31 Not Disqualified to Testify

§12:32 Lesser Standard of Care

§12:33 Tolling of Statute of Limitations

3. Guardian Ad Litem

§12:39 Introduction

§12:40 Appointed Ex Parte

§12:41 Who Appointed

§12:42 Application for Minor Plaintiff

§12:43 Application for Minor Defendant

§12:44 Application for Incompetent

§12:45 No Oath or Letters

§12:46 Powers of Guardian Ad Litem

§12:47 Compensation

§12:48 Employment of Attorney

§12:49 Settlement by Guardian

§12:50 Termination of Guardian Ad Litem

§12:51 Effect of Failure to Appoint Guardian and Right to Disaffirm

§12:52 Tolling of Statute of Limitations for Minors or the Insane

4. Settlement of Ward’s Claim

§12:60 Petition by Parent or Guardian to Settle Prior to Suit

§12:61 Petition by Guardian Ad Litem to Settle After Suit Filed

B. CORPORATIONS

§12:70 Basic Legal Provisions

§12:71 Attorney Required

§12:72 Dissolved Corporations

§12:73 Liability After Transfer of Assets

§12:74 Domestic Corporations

§12:75 Effect of Suspension

§12:76 Foreign Corporations

§12:77 Certificate of Qualification Requirement

§12:78 Foreign Corporation Not Transacting Business

§12:79 Alter Ego Doctrine

§12:80 Non-Profit Corporations

§12:81 Corporate Officers