In TetraVue, Inc. v. St. Paul Fire & Marine Ins. Co. (D067155 12/23/2015) 4/1 reinforced and explained an important principle of appellate procedure in a subsequent appeal. Previously, it had held the trial court had erred in denying summary judgment sought by TetraVue, remanding that matter "with instructions to grant summary judgment in favor of TetraVue and against St. Paul," deciding St. Paul had a "duty to defend a third party claim against TetraVue." Not content with that victory, on remand TetraVue "moved for leave to file an amended complaint for failure to defend and bad faith against St. Paul," which was denied. The Court of Appeal affirmed, explaining that, because it had reversed "with instructions to enter judgment" that conferred "a narrower scope of jurisdiction on the trial court than an unqualified or general reversal." The trial court only had jurisdiction to enter the judgment according to that direction; it could not grant leave to amend the complaint. CCP 473 (b) relief was unavailable, both because TetraVue had not raised that claim in the lower court and because the specific remand limited the legal authority of the trial court to grant the relief requested. So be sure and plead all possible theories initially as you may be foreclosed from adding them later if there is an intermediate appeal which limits the availability of relief. Don't wait for trial and seek to "amend according to proof."
