Friday, September 19, 2014

Let's Stop Rewarding Demurrer Sandbagging

Connerly v. California, No. C073753 (D3 Sept. 3, 2014)

So Ward Connerly and his crew at the Pacific Legal Foundation are peeved about some vague pro-diversity language in the statutory procedures governing the selection of the California Citizens Redistricting Commission. The relevant statute—Government Code § 8252—provides that six of the commissioners should be “chosen to ensure the commission reflect this state’s diversity, including, but not limited to, racial, ethnic, geographic, and gender diversity.” Connerly sued, claiming that the statute violates Prop. 209.

But it doesn’t. Indeed, Connerly abandoned that argument on appeal. Instead, he argues that he should have been allowed to amend his complaint to allege violations of the Fourteenth Amendment based on the same facts he pleaded. Even though that argument was never raised below. The court here agrees.

The court thinks the issue is entirely resolved by the language of Code of Civil Procedure § 472c. That statute says that on an appeal of a sustained 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.” This is a familiar point often raised by plaintiff/appellants: they don’t need to have asked the trial court for leave to amend to raise the issue on appeal. 

According to the court, § 472c also permits a “plaintiff to propose new theories on appeal.” It holds that to be the case even though arguing a federal equal protection claim was clearly a possibility to plaintiffs from the outset. (It’s not like Ward Connerly forgot to argue that any consideration of race by the government violates equal protection. He is, after all, Ward Connerly!) Indeed, the omission appears to have been a tactical effort to avoid removal to federal court. But to the court, that doesn’t matter. Because the equal protection theory is not impossible as a matter of law, Connerly can argue on appeal, successfully, that he should be permitted to amend to add the new theory on remand.


I find this case infuriating. It’s unfair. To the defendant. To the trial judge. And frankly, to the people of California, who have to bear the expense of litigating an entirely unnecessary appeal because the plaintiff made a tactical decision to sandbag and decline to argue a legal theory that he was fully aware of in response to a demurrer. It didn’t need to go this way. 

The court makes it sound like § 472c can’t be read to reach a different result. But it’s really not very hard to get there. Connerly doesn’t really want to amend his complaint, as “amend” is generally understood. That is, he doesn’t want to change the facts. He just wants to argue that the facts he pleaded show that statute violates a different constitution. But he doesn’t need to amend to do that, because how he labeled his cause of action does not matter. Ananda Church of Self–Realization v. Mass. Bay Ins. Co., 95 Cal. App. 4th 1273, 1281 (2002) (“[A] court is not bound by the captions or labels of a cause of action in a pleading. The nature and character of a pleading is to be determined from the facts alleged, not the name given by the pleader to the cause of action.”). Which is why a court ruling on a demurrer to a complaint asks “whether it alleges facts sufficient to state a cause of action under any legal theory, such facts being assumed true for this purpose.” McCall v. PacifiCare of Cal., Inc., 25 Cal. 4th 412, 415 (2001) (emphasis added). 

If, in opposing the state’s demurrer, Connerly believed the facts he pleaded also stated a federal equal protection claim, it was incumbent on him and his counsel to make that argument. Unlike the argument that leave to amend should have been afforded—which, to be sure, can be raised for the first time on appeal under § 472c—a failure to make a legal argument in the trial court generally waives the point on appeal. And although the court of appeal has the discretion to excuse the waiver and address a legal issue for the first time on appeal, given the apparently tactical nature of the waiver here, that doesn’t seem warranted.

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