Here's one for the next appellate specialization exam: When is it ok for an appellant to raise a new theory on appeal? Today's opinion in
Ward Connerly v. State of California, explains:
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 [“The issue of leave to amend is always open”]; Wennerholm v. Stanford University School of Medicine (1942) 20 Cal.2d 713, 719-720 [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; Richmond v. Dart Industries, Inc. (1987) 196 Cal.App.3d 869, 874, 879 (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. 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 (Cooper); see People ex rel. Brown v. Powerex Corp. (2007) 153 Cal.App.4th 93, 112 (Brown).)
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