Connerly v. State of California

In Connerly v. State of California (2014) 229 Cal.App.4th 457, the Court held that where the plaintiff Connerly "had not strayed from his central factual claim," he was allowed to "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' (Code Civ. Proc., 472c, subd. (a)) in not granting leave to amend." (Connerly, at p. 460.) Code of Civil Procedure 472c, subdivision (a) reads as follows: "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." Connerly's change of legal theory on appeal was that the process of selecting commissioners for the California Citizens Redistricting Commission violated the federal equal protection clause. (Connerly, at p. 461-462) His complaint in the trial court had alleged that "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, at p. 461.) His amended complaint also in the trial court had added "that the 'Applicant Review Panel' also improperly considered race, ethnicity, and gender." (Connerly, at p. 462.) In allowing Connerly leave to amend his complaint to allege the violation of the federal equal protection clause that he proposed for the first time on appeal, this court explained that where "Connerly had not strayed from his central factual claim that the composition of the Commission was infected by invidious discrimination, there was 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." (Connerly, at p. 464.) "A mere change in legal theory does not change the nature of the factual dispute." (Connerly, at pp. 463-464.)