“It is not necessary to affirmatively allege the capacity of a plaintiff to sue or of a defendant to be sued, because lack of capacity to sue or be sued is a matter of defense. However, corporate capacity is usually alleged in the complaint as a matter of common practice. A domestic corporation should allege that it is and was, at all times mentioned in the complaint, a corporation, duly organized and existing under, and by virtue of, the laws of California. A foreign corporation should allege that it is and was, at all times mentioned in the complaint, a corporation duly organized and existing under and by virtue of the laws of its state of incorporation, and that it is authorized to do business in California.
If the complaint reveals on its face that a plaintiff designated in the caption as a corporation is not a corporation, a special demurrer will lie under Code Civ. Proc. § 430.10, subd. (b). However, the defect of lack of capacity usually does not appear on the face of the complaint. If the body of the complaint contains no allegation on the subject, lack of capacity should be raised by answer. The defect of lack of capacity, like other matters in abatement, must be specially pleaded or it is waived. [Traub Co. v. Coffee Break Service, Inc., 66 Cal. 2d 368, 57 Cal. Rptr. 846, 425 P.2d 790 (1967)]
The significance of raising a lack of capacity to sue by answer or special demurrer can not be understated because once a plea in abatement is waived, a court will be rarely justified in permitting the defense to be made later. [Color-Vue, Inc. v. Abrams, 44 Cal. App. 4th 1599, 52, 52 Cal. Rptr. 2d 443 (2d Dist. 1996); Danziger v. Peebler, 88 Cal. App. 2d 307, 198 P.2d 719 (2d Dist. 1948)]”
[California Civil Practice Business Litigation [certain citations omitted]]
