Connerly v. State

• Decision Date: 03 September 2014
• Docket Number: C073753
• Court: California Court of Appeals Court of Appeals
• Parties: Ward CONNERLY et al., Plaintiffs and Appellants, v. STATE of California et al., Defendants and Respondents.

229 Cal.App.4th 457

177 Cal.Rptr.3d 304

Ward CONNERLY et al., Plaintiffs and Appellants,

v.STATE of California et al., Defendants and Respondents.

C073753

Court of Appeal,

Third District, California.

Filed September 3, 2014

See 5 Witkin, Cal. Procedure (5th ed. 2008) Pleading, § 1000.

APPEAL from a judgment of the Superior Court of Sacramento County, Michael P. Kenny, Judge. Reversed. (No. 34201180000966CUWMGDS)

Pacific Legal Foundation, Meriem L. Hubbard, Ralph W. Kasarda, Sacramento, and Joshua P. Thompson for Plaintiffs and Appellants.

Munger, Tolles & Olson, Bradley S. Phillips, Soraya C. Kelly, and Puneet K. Sandhu, Los Angeles; Equal Justice Society, Eva Paterson and Allison S. Elgart; ACLU Foundation of Southern California, Mark D. Rosenbaum, and Hector O. Villagra, Los Angeles; Lawyers' Committee for Civil Rights, Oren Sellstrom, San Francisco; and Asian Americans Advancing Justice, Eugene Lee for California Common Cause, League of Women Voters of California, and California NAACP as Amicus Curiae for Plaintiffs and Appellants.

Kamala D. Harris, Attorney General, Douglas J. Woods, Senior Assistant Attorney General, Marc A. LeForestier, Supervising Deputy Attorney General, and Kari Krogseng, Deputy Attorney General, for Defendants and Respondents State of California and California Citizens Redistricting Commission.

Toledo Don, Margaret Carew Toledo, Stacy E. Don; Donna L. Neville, Chief Counsel, Steven Benito Russo, Senior Staff Counsel for Defendant and Respondent California State Auditor.

DUARTE , J.

INTRODUCTION

This case involves two policy issues that are often viewed as controversial; (1) racial, ethnic, and gender preferences, and (2) the decennial redistricting process. But because this appeal turns on a counterintuitive quirk of California appellate law, we need not reach the merits.

By statute, “When any court makes an order sustaining a demurrer without leave to amend the question as to whether or not such court abused its discretion in making such an order is open on appeal even though no request to amend such pleading was made.” (Code Civ. Proc., § 472c, subd. (a)); ¹ see City of Stockton v. Superior Court (2007) 42 Cal.4th 730, 746, 68 Cal.Rptr.3d 295, 171 P.3d 20 [“The issue of leave to amend is always open”]; Wennerholm v. Stanford University School of Medicine (1942) 20 Cal.2d 713, 719–720, 128 P.2d 522 [overruling prior rule, even though § 472c as enacted in 1939 was prospective].

Contrary to longstanding rules generally precluding a party from changing the theory of the case on appeal (see, e.g., Panopulos v. Maderis (1956) 47 Cal.2d 337, 340–341, 303 P.2d 738; Richmond v. Dart Industries, Inc. (1987) 196 Cal.App.3d 869, 874, 879, 242 Cal.Rptr. 184 (Richmond )), a plaintiff may propose new facts or theories to show the complaint can be amended to state a cause of action, thereby showing the trial court “abused its discretion” (§ 472c, subd. (a)) in not granting leave to amend.² The plaintiff “must show in what manner he can amend his complaint and how that amendment will change the legal effect of his pleading.” ( Cooper v. Leslie Salt Co. (1969) 70 Cal.2d 627, 636, 75 Cal.Rptr. 766, 451 P.2d 406 ( Cooper ); see People ex rel. Brown v. Powerex Corp. (2007) 153 Cal.App.4th 93, 112, 62 Cal.Rptr.3d 638 ( Brown ).)

Respondents largely ignore these rules, and contend plaintiffs cannot raise a new theory on appeal. In particular, they contend the new theory would require a hearing to resolve contested facts that they have had no chance to litigate. But the effect of their arguments, whether or not intended as such, is to concede plaintiffs have articulated a new legal theory that necessitates a factual resolution. Thus, this dispute is not ripe for resolution by demurrer. ³

We reverse with directions to the trial court to grant plaintiffs leave to amend the complaint, without expressing any views on the merits of plaintiffs' claim.

BACKGROUND

In 2008 and 2010, the People of California, exercising their reserved initiative powers, changed the way California's State Senate, State Assembly, Congressional, and Board of Equalization voting districts are adjusted after each national census, assigning the corresponding duties to the California Citizens Redistricting Commission (Commission). (See Vandermost v. Bowen (2012) 53 Cal.4th 421, 442–448, 137 Cal.Rptr.3d 1, 269 P.3d 446 (Vandermost) [tracing redistricting history, adoption of Commission, and criteria used for drawing the various electoral boundaries].) The fine details of the method of selecting commissioners are unnecessary to describe. In summary, Government Code section 8252 provides that the State Auditor forms an “Applicant Review Panel” that narrows that pool to 60 candidates, who are subject to peremptory strikes by specified officials. The State Auditor randomly selects eight commissioners from the remaining pool, giving preference to certain political parties, and these eight commissioners select the remaining six, again giving preference to certain political parties, but the “six appointees are to be ‘chosen to ensure the commission reflects this state's diversity, including, but not limited to, racial, ethnic, geographic, and gender diversity.’ ( [Gov.Code, § 8252, subd. (g) ].) The Commission, however, need not comply with any specific ratio or formula. ( Ibid.)” (Vandermost, supra, 53 Cal.4th at p. 445, 137 Cal.Rptr.3d 1, 269 P.3d 446.)

Plaintiffs Ward Connerly and the American Civil Rights Foundation (collectively, Connerly) sued defendants State of California (State), the State Auditor, and the Commission (defended on appeal by the State), alleging the method of selecting members of the Commission violated Proposition 209 (Cal. Const., art. I, § 31), in that it gave improper preferences based on race, ethnicity, and gender.

Connerly then filed an amended complaint, again asserting the selection process for the last six commissioners violated Proposition 209, but adding that the “Applicant Review Panel” also improperly considers race, ethnicity, and gender. These were characterized as “facial” challenges to Government Code section 8252, subdivision (g) based on Proposition 209, for which various remedies were sought.

The State and State Auditor demurred in part on the grounds that Proposition 209 does not apply to the selection of public officers, only to public employees. The trial court sustained the demurrer without leave to amend on this ground. Connerly timely appealed from the judgment.

DISCUSSION

As we suggested ante, Connerly has effectively abandoned his amended complaint, and proposes a new legal theory—but no new facts—in his opening brief, explicitly citing the authority of section 472c, subdivision (a). We therefore have no occasion to further describe the amended complaint, as we presume the trial court properly sustained the demurrer thereto. (See fn. 2, ante.)

Connerly now seeks leave to assert the selection process violates the federal equal protection clause, arguing in the alternative: “This Court should rule on this new claim, because it concerns an issue of a law applied to undisputed facts. In the alternative, Connerly requests that this Court grant leave to amend the Complaint to specifically allege a violation of the federal Equal Protection Clause.” ⁴

Both the State and State Auditor contend it is unfair for Connerly to raise this theory on appeal because they have not had a chance to disprove it factually. They almost entirely ignore section 472c, which, as explained in the Introduction, allows a plaintiff to propose new theories on appeal. (See Cooper, supra, 70 Cal.2d at p. 636, 75 Cal.Rptr. 766, 451 P.2d 406; Brown, supra, 153 Cal.App.4th at p. 112, 62 Cal.Rptr.3d 638.) ⁵

The State does not cite or discuss section 472c, an inexplicable oversight given that it was briefed by Connerly.⁶

The State Auditor addresses the statute briefly, and relies on the following quotation from an older case: “More fundamental, however, is the fact that the allegations ... are completely foreign to the cause of action attempted to be stated in the original complaint. It is no abuse of discretion for a trial court to refuse leave to a plaintiff to amend his complaint to state an entirely different cause of action from that originally pleaded.” (Taliaferro v. Industrial Indem. Co. (1955) 131 Cal.App.2d 120, 122–123, 280 P.2d 114.) Taliaferro concluded all of the plaintiff's theories—including a new claim that he had been overcharged by the defendant for many years—could be raised as defenses in a threatened collection against him. (Id. at pp. 121–122, 280 P.2d 114.) The passage relied on by the State Auditor, which comes after the court's analysis of the lack of merit of the plaintiff's allegations, is arguably dicta, and is limited to the situation where a plaintiff is trying to plead an entirely different dispute between the parties, unlike this case.⁷ And, as Connerly points out, quoting a Supreme Court case regarding when a new cause of action relates back, so as to embrace a previously-sued fictitious party as against a statute of limitation defense, “Some early cases held that an amendment stating any new cause of action could not relate back and that a plaintiff could not amend so as to change the legal theory of his action. [Citations.] Subsequent cases held that a mere change in legal theory would not prevent an amendment from relating back but that an amendment would not relate back if it set forth ‘a wholly different cause of action,’ i.e., ‘a wholly different legal liability or obligation.’ ” ( Austin v. Massachusetts Bonding & Ins. Co. (1961) 56 Cal.2d 596, 600–601, 15 Cal.Rptr. 817, 364 P.2d 681.) Although Connerly's case does not raise the issue of relation back of causes of action, Austin illustrates that a mere change in legal theory does not change the nature of the factual dispute. Connerly has not strayed from his central factual claim that the composition of the Commission was...