Appeals Court Finds a Phantom Abuse of Discretion

John Cu 
John Cu
November 1, 2014

Can the Court of Appeal find an “abuse of discretion” by the trial court even if the trial court did nothing wrong? Yes, as explained in Connerly v. State of California (C073753).

In Connerly, Ward Connerly and the American Civil Rights Foundation (“Petitioners”) sued the State of California, the State auditor, and the California Citizens Redistricting Commission (collectively, the ‘State”), alleging the statutory method for selecting members of the Commission violated Proposition 209, because it gave improper preferences based on race, ethnicity, and gender.

The State demurred, arguing that Prop. 209 does not apply to the selection of public officers, only public employees. The trial court sustained the demurrer without leave to amend.

On appeal, Petitioners asserted a new theory of liability, arguing instead that the selection process violated the federal equal protection clause. The State argued that Petitioners were precluded from arguing a new theory of the case for the first time on appeal.

The Third District Court of Appeal reversed, holding that Petitioners could argue any theory they wanted on appeal from the trial court’s order sustaining the defendants’ demurrer without leave to amend. The Court of Appeal held that, under section 472c(a) of the Code of Civil Procedure, 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.”

The Court explained that, contrary to longstanding rules generally precluding a party from changing the theory of the case on appeal, a plaintiff may propose new facts or theories to show a complaint can be amended to state a cause of action, thereby showing the trial court “abused its discretion” in not granting leave to amend. The plaintiff must merely show how the proposed amendment will change the legal effect of the pleading.

Thus, it is possible for the Court of Appeal to retroactively find an “abuse of discretion” even when the trial court was never asked to exercise its discretion in the first place.