Filed 9/3/14
                              CERTIFIED FOR PUBLICATION




               IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                               THIRD APPELLATE DISTRICT
                                         (Sacramento)
                                              ----




WARD CONNERLY et al.,                                            C073753

                 Plaintiffs and Appellants,                   (Super. Ct. No.
                                                        34201180000966CUWMGDS)
        v.

STATE OF CALIFORNIA et al.,

                 Defendants and Respondents.


      APPEAL from a judgment of the Superior Court of Sacramento County,
Michael P. Kenny, Judge. Reversed.

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

        Munger, Tolles & Olson, Bradley S. Phillips, Soraya C. Kelly, and Puneet K.
Sandhu; Equal Justice Society, Eva Paterson and Allison S. Elgart; ACLU Foundation of
Southern California, Mark D. Rosenbaum, and Hector O. Villagra; Lawyers’ Committee
for Civil Rights, Oren Sellstrom; 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.




                                               1
       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.


                                    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 [“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”




1   Undesignated statutory references are to the Code of Civil Procedure.

                                              2
(§ 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 (Cooper); see
People ex rel. Brown v. Powerex Corp. (2007) 153 Cal.App.4th 93, 112 (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 (Vandermost)


2 The statute dictates that we frame the issue as whether the trial court “abused its
discretion” in denying leave to amend. (§ 472c, subd. (a).) This is arguably misleading
and unfair. The trial court ruled on the facts and law that were presented in the amended
complaint and moving papers on the demurrer, and plaintiffs have not challenged the trial
court’s resolution of those issues, impliedly conceding the trial court made no mistake.
However, we have been presented with and review a different theory. Nothing in our
opinion should be read to impugn the trial court, despite the fact that we must
characterize this as a case of abuse of discretion by that court in denying leave to amend,
as the statute frames it.
3 A second claim--that Connerly’s new theory is legally infirm--is not persuasive; as we
explain post, respondents have not shown he cannot state a prima facie case.

                                              3
[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.)
       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.



                                              4
                                       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




4  “Proposition 209 overlaps, but is not synonymous with, the principles of [federal equal
protection] . . . . Under equal protection principles, all state actions that rely upon suspect
classifications must be tested under strict scrutiny, but those actions which can meet the
rigid strict scrutiny test are constitutionally permissible. Proposition 209, on the other
hand, prohibits discrimination against or preferential treatment to individuals or groups
regardless of whether the governmental action could be justified under strict scrutiny. [¶]
In this respect, the distinction between what the federal Constitution permits and what it
requires becomes particularly relevant. [Citation.] To the extent the federal Constitution
would permit, but not require, the state to grant preferential treatment to suspect classes,
Proposition 209 precludes such action.” (Connerly v. State Personnel Bd. (2001)
92 Cal.App.4th 16, 42-43 (Connerly).) No party argues a case that fails under
Proposition 209 would necessarily fail under equal protection principles. The trial court
ruled Proposition 209 does not cover selection of public officers, only employees. No
party claims that would be a sure defense under the equal protection clause.

                                              5
plaintiff to propose new theories on appeal. (See Cooper, supra, 70 Cal.2d at p. 636;
Brown, supra, 153 Cal.App.4th at p. 112.)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.) 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.) 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




5 Connerly also relies on other exceptions to the general rule against raising new issues
on appeal, such as where constitutional rights or public policy are at issue, or the case
does not turn on new facts. (See, e.g., Hale v. Morgan (1978) 22 Cal.3d 388, 394;
Richmond, supra, 196 Cal.App.3d at p. 879.) We need not address these alternate
contentions, in light of our ultimate conclusion.
6  Amici curiae (California Common Cause, League of Women Voters of California, and
California NAACP), too, fail to cite or discuss the statute. They do seek to raise a new
issue, namely, that Connerly has deprived respondents of the ability to remove his federal
equal protection claims to federal court. The parties are silent on this point. We decline
to address this new claim. (See Professional Engineers in California Government v.
Kempton (2007) 40 Cal.4th 1016, 1047, fn. 12 [generally, amicus curiae cannot expand
the issues beyond those raised by the parties].)

                                               6
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.) 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 infected by invidious discrimination.
There is no reason to deviate from the well-established rule that section 472c allows a
plaintiff to propose new theories on appeal from the sustaining of a demurrer without
leave to amend.
       Nor are we persuaded by the claim that Connerly should be barred from raising a
new theory on appeal because he withheld the equal protection claim from the trial court
for “tactical” reasons. All complaints are drafted for “tactical” reasons, that is, to achieve
the greatest relief for the client most efficiently. The fact that the instant complaint was
found wanting raises precisely the circumstance section 472c was designed to address--to


7 We observe that Taliaferro was a notorious vexatious litigant. (See Taliaferro v.
Hoogs (1965) 236 Cal.App.2d 521 [upholding vexatious litigant statute adopted in 1963;
Stats. 1963, ch. 1471, § 1, p. 3038]; Comment, The Vexatious Litigant (1966) 54
Cal.L.Rev. 1769, 1775 & fn. 32 [listing many appeals by Taliaferro].) That fact may
have influenced the Taliaferro court’s desire to end the case. However, the State
Auditor’s broad application of this quote from Taliaferro would emasculate section 472c
as consistently interpreted by the reviewing courts of this state for many years.

                                               7
give the plaintiff a final opportunity to propose new facts or legal theories to establish a
cause of action. Here, unlike in the authority cited to us, Connerly’s proposed new theory
is not inconsistent with his existing complaint. (Cf. CAMSI IV v. Hunter Technology
Corp. (1991) 230 Cal.App.3d 1525, 1538-1543 (CAMSI IV) [for the first time in
rehearing petition, the plaintiff proposed a new legal theory that counsel had disavowed
at oral argument in the Court of Appeal; held, claim came too late and the claim was
withheld for tactical reasons].) CAMSI IV emphasized it was “the trial court’s
discretion” that was being reviewed and concluded: “The trial court could rationally
have regarded [the plaintiff’s] choice among theories as essentially tactical and not
subject to interference by the court.” (Id. at pp. 1542-1543.)
       Even assuming (without deciding) that CAMSI IV was correct in suggesting that a
party could be barred from timely raising new theories on appeal merely because the
timing appeared tactical, the situation here is distinguishable. Here, the equal protection
claim was “a potentially effective amendment . . . both apparent and consistent with the
plaintiff’s theory of the case” which even the CAMSI IV court indicated would be a
proper amendment. (CAMSI IV, supra, 230 Cal.App.3d at p. 1542.) And Connerly
timely proposed the amendment by presenting it in his opening brief on appeal. To read
CAMSI IV to bar any presentation of theories on appeal that were known to the plaintiff
before the filing of the complaint, but not presented therein, would be inconsistent with
section 472c. We decline to read CAMSI IV in the manner suggested by the State.
       As for the claims about new evidence, the State Auditor contends the “strict
scrutiny” test applicable to Connerly’s claims is fact-specific, adding: “Respondents
should have been afforded an opportunity to develop the factual record” to satisfy that
burden; and “the parties have not had a reasonable opportunity to present factual
evidence of the state’s important or compelling governmental interests in the alleged race
or sex classifications and whether such alleged classifications were substantially or
narrowly tailored to accomplish such governmental interests.”

                                              8
       Consistent with this view, the State contends it “has not had the opportunity to
submit evidence to demonstrate its compelling interest in ensuring diversity of the
[C]ommissions’s membership or the State’s interest in diverse public bodies in order to
ensure the legitimacy of those bodies in the eyes of all its citizens.” This is also
consistent with the beginning of the State’s briefing, where it also made the point that it is
unfair for Connerly to raise a new factual issue on appeal.
       However, at the end of its briefing, the State cursorily asserts that Connerly’s case
fails as a matter of law. The State Auditor, too, adds this claim at the end of its briefing,
in more depth. Respondents largely rely on Grutter v. Bollinger (2003) 539 U.S. 306
[156 L.Ed.2d 304] (Grutter), a case involving higher education, a subject triggering
additional First Amendment concerns, as outlined by Justice Powell in his “fifth vote”
decision in Regents of Univ. of Cal. v. Bakke (1978) 438 U.S. 265, 311-315 [57 L.Ed.2d
750, 785-786] (lead. opn. of Powell, J.). (See Fisher v. Univ. of Texas (2013) 570 U.S.
__ [186 L.Ed.2d 474, 483-485] (Fisher)); Grutter, supra, 539 U.S. at pp. 322-325 [156
L.Ed.2d at pp. 328-330].) The passage of Grutter relied on by the State quotes part of an
amicus brief by the United States; we provide a more complete quotation from Grutter:

              “We have repeatedly acknowledged the overriding importance of preparing
       students for work and citizenship, describing education as pivotal to ‘sustaining
       our political and cultural heritage’ with a fundamental role in maintaining the
       fabric of society. [Citation.] This Court has long recognized that ‘education . . . is
       the very foundation of good citizenship.’ [Citation.] For this reason, the diffusion
       of knowledge and opportunity through public institutions of higher education must
       be accessible to all individuals regardless of race or ethnicity. The United States,
       as amicus curiae, affirms that ‘ensuring that public institutions are open and
       available to all segments of American society, including people of all races and
       ethnicities, represents a paramount government objective.’ ” (Grutter, supra, 539
       U.S. at pp. 331-332 [156 L.Ed.2d at p. 334].)
       To the extent respondents interpret this passage to apply to all governmental
institutions rather than merely higher educational institutions, and in all circumstances,
that overstates the holding of Grutter, which allowed the use of race as an amorphous


                                              9
“plus factor” in a law school’s admission process, after a court trial. (Grutter, supra, 539
U.S. at pp. 333-340 [156 L.Ed.2d at pp. 335-340]; see also Fisher, supra, 570 U.S. at pp.
__ [186 L.Ed.2d at pp. 483-489] [ruling after cross-motions for summary judgment in a
higher education case].) Such a program must be subjected to strict judicial scrutiny in
its implementation, that is, how it works factually, which must be narrowly tailored to
meet the goal of diversity without straying into invidious discrimination. (Fisher, supra,
570 U.S. at pp. __ [186 L.Ed.2d at pp. 486-489].) “Grutter did not hold that good faith
would forgive an impermissible consideration of race. It must be remembered that ‘the
mere recitation of a “benign” or legitimate purpose for a racial classification is entitled to
little or no weight.’ [Citation.] Strict scrutiny does not permit a court to accept a
school’s assertion that its admissions process uses race in a permissible way without a
court giving close analysis to the evidence of how the process works in practice.” (Id. at
p. __ [186 L.Ed.2d at p. 488]; see Coral Construction, Inc. v. City and County of San
Francisco (2010) 50 Cal.4th 315, 338, fn. 20 [Prop. 209 case: “A legislative body cannot
preclude searching judicial review of presumptively unconstitutional racial classifications
with findings to the effect that such classifications are necessary, however much
supporting evidence is claimed to exist”].)
       Thus, Grutter does not, of itself, defeat Connerly’s claims, as respondents have
implicitly conceded. Factual disputes remain as to equal protection claims.8



8 The State’s citation to Bredesen v. Tenn. Judicial Selection Comm’n (2007) 214 S.W.3d
419--bereft of any discussion or analysis--is unpersuasive. The Tennessee Supreme
Court upheld as against an equal protection challenge a Governor’s act under a Tennessee
judicial selection process of rejecting a list of nominees after the sole Black nominee
withdrew. The court assumed the governor’s act constituted a racial classification, and
construed Grutter to mean that racial diversity as one selection factor among many was
unobjectionable. (Id. at pp. 437-439.) The court read Grutter to mean there was a
“compelling state interest in seeking to have a diverse judiciary.” (Id. at p. 438.) But
Bredesen turned on its specific facts, involving the peculiarities of the Tennessee judicial
selection plan, and is not on point here.

                                              10
       Thus, from the parties’ briefing, it appears Connerly can plead at least a prima
facie case of equal protection violations. (See Connerly, supra, 92 Cal.App.4th at pp. 36-
39, 44-45.) The answer is to apply section 472c, subdivision (a), allow Connerly to
amend the complaint again to clarify his new theories, and give respondents the chance to
defend the Commission’s selection provisions to try to show they comport with federal
equal protection principles.9
                                     DISPOSITION
       The judgment is reversed with directions to the trial court to grant Connerly leave
to amend the complaint consistent with this opinion. The parties shall bear their own
costs on appeal. (Cal. Rules of Court, rule 8.278(a)(5).)




                                                       DUARTE                , J.



We concur:



      BUTZ                  , Acting P. J.



      HOCH                  , J.




9 The first Commission has completed its work. But the issues Connerly raises are likely
to recur after the next census, and no party suggests the issues are either moot or unripe.

                                             11
