Connerly

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)); see City of Stockton v. Superior Court (2007) 42 Cal.4th 730, 746 [ 68 Cal.Rptr.3d 295 , 171 P.3d 20 ] [“The issue of leave to amend is always open . . . .”]; Wennerholm v. Stanford University School of Medicine (1942) 20 Cal.2d 713, 719-720 [ 128 P.2d 522 ] [overruling prior rule, even though § 472c as enacted in 1939 was prospective].)

Contrary to long-standing 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 [ 303 P.2d 738 ]; Richmond v. Dart Industries, Inc. (1987) 196 Cal.App.3d 869, 874, 879…