Appellate Switcharoo OK when a Demurrer Is the Question

Gutierrez v. Carmax Auto Superstores Cal., No. F073215 (D5 Jan. 30, 2018)

The trial court granted a demurrer in a UCL and CLRA claim about used car warranties. In claiming that a warranty claim was sufficient, Plaintiff advances a new theory that wasn’t raised in the trial court. But that doesn’t preclude a reversal. 

Although failure to raise an issue before the trial court generally precludes its consideration on appeal, that rule is subject to exceptions. One of them is that in reviewing a demurrer, an appellate court looks de novo at whether the complaint states facts sufficient to sustain a cause of action on any possible legal theory. According to the Court here, the Supreme Court cases that states that rule—see e.g., City of Dinuba v. County of Tulare, 41 Cal. 4th 859, 870 (2007)—don’t limit their review to theories raised in the trial court. Some earlier Court of Appeal cases bear that out.

Justice Poochigian dissents, but only on the merits of a CLRA issue.

Reversed in part.