“Under section 430.10(e) of the Code of Civil Procedure, a party against whom a complaint has been filed may object on the ground that the “pleading does not state facts sufficient to constitute a cause of action.” The defense is also available against a petition for writ of mandate. The objection may be made by demurrer or answer, and, unlike most defenses, it is not waived even if not asserted by demurrer or answer. Despite this similarity to the defense of lack of subject matter jurisdiction, the defense of failure to state a cause of action is not jurisdictional.”
[California Affirmative Defenses [certain citations omitted]]
