California
Appeals

Inherent Power-inherent power to remand back to the trial court

IV.  Remand

            This court has the inherent power to remand this matter back to the trial court to give Ohton an opportunity to seek leave to amend to add a petition for writ of mandate.  (Branick v. Downey Savings & Loan Assn. (2006) 39 Cal.4th 235, 238-239 (Branick).)  We believe it is appropriate under the unusual circumstances of this case to remand.  This is the first case arising under section 8547.12, subdivision (c).  The term "satisfactorily addressed" has not been previously interpreted and its application has proved troublesome to both parties and the trial court. 

            Although CSU claims Ohton can only challenge its actions by writ of mandate, it prevailed below by convincing the court to read the words "satisfactorily addressed" out of the statute.  Under this approach, the issue is resolved not by writ of mandate, but by consulting a calendar.  Ohton's "objective good faith" standard hints at the standards applicable under mandate.  Indeed, the final pages of Appellant's opening brief read like a memorandum of points and authorities in support of a petition for writ of mandate.

            Whether Ohton may amend cannot be determined at this stage of the proceedings because Ohton had not yet filed a motion for leave to amend.  On remand, should Ohton "in fact file a motion to amend, the superior court should decide the motion by applying the established rules governing leave to amend [citation] and the relation back of amended complaints."  (Branick, supra, 39 Cal.4th at p. 239.)  To avoid prejudicing the trial court's decisions, we will not attempt to render an advisory opinion on a motion Ohton has not yet filed.  (See Branick, at p. 243.)

DISPOSITION

            The judgment is reversed and remanded.  The trial court shall give Ohton an opportunity to seek leave to amend to add a petition for writ of mandate and decide all issues arising from the same.

Ohton v. Trustees, Cal. State Univ. 3/16/07 CA4/1
Ohton v. Trustees, Cal. State Univ. 3/16/07 CA4/1-pdf

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