County of L.A. v. L.A. County Civil Service Com ( 2018 )


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  • Filed 4/12/18
    CERTIFIED FOR PUBLICATION
    IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
    SECOND APPELLATE DISTRICT
    DIVISION THREE
    COUNTY OF LOS ANGELES                    B275974
    Plaintiff and Respondent,         (Los Angeles County
    Super. Ct. No. BS156979)
    v.
    LOS ANGELES COUNTY CIVIL
    SERVICE COMMISSION,
    Defendant;
    GREGORY MERRITT,
    Real Party in Interest and
    Appellant.
    PURPORTED APPEAL from an order of the Superior
    Court of Los Angeles County, James C. Chalfant, Judge.
    Dismissed.
    Rothner, Segall & Greenstone, Glenn Rothner and
    Jonathan Cohen for Real Party in Interest and Appellant.
    Gutierrez, Preciado & House, Calvin House; Catherine
    Mason Mathers, County Counsel, for Plaintiff and Respondent.
    No appearance for Defendant and Respondent.
    _________________________
    INTRODUCTION AND SUMMARY
    The County of Los Angeles fired Gregory Merritt, a
    supervisor in the County’s Department of Children and Family
    Services for (1) failing to adequately supervise a social worker,
    Patricia Clement, and (2) approving Clement’s unjustifiable
    closure of a case of suspected child abuse without first consulting
    the Department’s records, as required by Department policy.
    Those records indicated the child – eight-year-old Gabriel
    Fernandez – was at risk of further abuse and that the file
    unquestionably should not have been closed. In May 2013, less
    than two months after Merritt approved closing the file, thereby
    ending the Department’s efforts to protect the child, Gabriel’s
    mother and her boyfriend beat the child to death.1
    Merritt appealed his discharge to the Civil Service
    Commission. After taking evidence, a hearing officer found that
    Merritt had been negligent, but set aside the discharge, instead
    imposing a 10-day suspension as the only penalty. The County
    objected to reinstating Merritt. In response, and without reading
    the record or receiving any further evidence, the Commission
    adopted the hearing officer’s negligence findings, but substituted
    a 30-day suspension without back pay as the penalty.
    The County filed a petition for writ of administrative
    mandate, asking the Superior Court to overturn the
    Commission’s decision requiring reinstatement and to instead
    uphold its firing of Merritt. Merritt filed a separate petition for
    writ of traditional mandate seeking an award of back pay. The
    Superior Court consolidated the two petitions.
    1      These events resulted in substantial media attention and
    criticism of the Department. Like the trial court, we use the full
    names of those involved because they have become part of the
    public domain, and because Gabriel is the victim of homicide.
    2
    On May 5, 2016, the Superior Court, having concluded the
    Commission set forth insufficient findings to “bridge the analytic
    gap”2 between the evidence of Merritt’s failings and its decision to
    impose a 30-day suspension rather than discharge (or any other
    possible penalty), partially granted the County’s petition, to this
    extent: it remanded the matter to the Commission with
    instructions to set aside its decision, make appropriate findings,
    reconsider the penalty based on those findings, and issue a new
    decision that includes findings explaining its rationale. The court
    explicitly stated its order was interlocutory. It did not require or
    foreclose any particular decision by the Commission and left for
    future review by that court the core issue of Merritt’s discharge
    or reinstatement. The court denied as moot Merritt’s petition for
    an award of back pay, with the express understanding that it
    could be revived depending on the Commission’s decision. In a
    colloquy with the judge, Merritt’s counsel acknowledged that this
    interlocutory order would not be subject to appellate review.
    Nevertheless, Merritt appealed.
    In the recent case of Dhillon v. John Muir Health,3 our
    Supreme Court reiterated the familiar rule that “[i]n general, an
    adverse ruling in a judicial proceeding is appealable once the trial
    court renders a final judgment,” (id. at p. 1115) and that the
    general rule applies equally in administrative mandate
    proceedings. (Ibid.) It eschewed a one-size-fits-all rule, however,
    for determining whether an order partially granting a petition for
    2     Topanga Assn. for a Scenic Community v. County of Los
    Angeles (1974) 
    11 Cal. 3d 506
    , 515, 516; Young v. City of Coronado
    (2017) 10 Cal.App.5th 408, 420-422; Farr v. County of Nevada
    (2010) 
    187 Cal. App. 4th 669
    , 686.
    3     (2017) 2 Cal.5th 1109 (Dhillon).
    3
    writ of mandate and remanding the matter to an agency or other
    inferior tribunal is a final judgment, and therefore appealable.
    Instead, it stated “ ‘ “[a]s a general test, which must be adapted to
    the particular circumstances of the individual case, . . . where no
    issue is left for future consideration except the fact of compliance
    or noncompliance with the terms of the first decree, that decree is
    final, but where anything further in the nature of judicial action
    on the part of the court is essential to a final determination of the
    rights of the parties, the decree is interlocutory.” ’ ” (Ibid.)
    Dhillon also recognized, however, that an otherwise nonfinal
    order remanding a matter to an administrative agency may be
    appealable if the order affects substantial rights and may, as a
    practical matter, be unreviewable after resolution of the merits of
    the controversy. (Id. at pp. 1117-1118 & fn. 4.)
    Because the May 5, 2016 order from which Merritt
    purports to appeal left the key issues raised by the parties for
    future resolution by the trial court, and because the propriety of
    that order is an issue that could be resolved in any future appeal
    from a final judgment, the order is not a final judgment and is
    not appealable. Accordingly, we dismiss Merritt’s purported
    appeal.
    FACTS AND PROCEDURAL BACKGROUND
    1.     Events leading to Merritt’s discharge.
    Gabriel’s teacher first reported suspected physical abuse of
    Gabriel to the Department’s emergency response unit in October
    2012. The Department had previously received reports of abuse
    or neglect of other children in the home. On December 27, 2012,
    Merritt was asked to screen the case for family preservation.
    Thereafter, the Department opened a voluntary family
    maintenance case plan, signed by the mother on January 29,
    2013. The voluntary family maintenance case plan was assigned
    to Patricia Clement, a social worker under Merritt’s supervision.
    4
    After the mother refused services, Clement recommended
    closing Gabriel’s case on March 29, 2013, which Merritt approved
    on April 5, 2013. The family’s case was finally closed with
    Gabriel’s sibling on April 25, 2013. About a month later, on May
    22, 2013, Gabriel’s mother and her boyfriend beat him severely;
    he died of his injuries two days later.
    The Department launched an internal affairs investigation
    after the child’s death. The investigation revealed, among other
    things, that Clement had failed to conduct the required
    assessments regarding the safety of Gabriel’s home environment
    and his need for mental health services. For example, the case
    file and online records showed missed interviews with Gabriel,
    bodily injuries to Gabriel, that Gabriel had suicidal ideations and
    had allegedly been sexually abused by a relative, and the failure
    of the mother to cooperate. These factors should have precluded
    closing the case file. Yet, the case was closed.
    Following the investigation, the Department decided to
    terminate four social workers, including Clement and Merritt.
    The Department discharged Merritt for his negligent supervision
    of Clement, citing his failure to ensure Clement: complied with
    continuing services case management policies; screened and
    assessed Gabriel and his siblings for mental health services;
    complied with contact and documentation requirements; properly
    investigated and assessed allegations of physical abuse; assessed
    Gabriel’s mother’s parental capacity; assessed an emergency
    response referral; and thoroughly assessed the appropriateness of
    terminating Gabriel’s case. The Department also cited Merritt’s
    failure to comply with its standards for supervising children’s
    social workers, including Merritt’s failure to review the paper
    case file and the Department’s online CWS/CMS case record
    system before closing Gabriel’s case.
    5
    2.    Proceedings before the Commission.
    Merritt appealed the discharge to the Commission and
    requested a hearing. The Commission’s hearing officer held an
    evidentiary hearing, including two days of testimony, and issued
    written findings of fact and conclusions of law. After
    summarizing the witnesses’ testimony and documentary
    evidence, the hearing officer made the following findings of fact,
    among others:
    • Merritt “relied on . . . Patricia Clement, an experienced
    social worker, and she failed to perform her duties to his
    expectations.”
    • “The un-rebutted testimony demonstrates that [Merritt]
    asked Ms. Clement appropriate and necessary questions
    about the case at regular meetings between them.”
    • “Clement misrepresented the circumstances
    surrounding the services she was providing to the minor
    and his family and failed to accurately report said
    circumstances to [Merritt].”
    • “Clement misrepresented facts about the minor and his
    family’s circumstances to [Merritt] when she
    recommended closing the case.”
    • Merritt “could have been more thorough and involved in
    supervising . . . Clement and the case involving this
    minor and his family.”
    • “The evidence on the record is not sufficient to sustain
    the discharge of [Merritt].”
    • “The evidence supports a ten-day suspension.”
    The hearing officer concluded the Department “sustained
    the burden of proof that [Merritt] did not provide sufficient
    supervision to . . . Patricia Clement,” but did not sustain its
    “burden of proof that discharge is the appropriate level of
    6
    discipline,” and recommended the Commission reduce Merritt’s
    discharge to a 10-day suspension.
    The Commission tentatively accepted the hearing officer’s
    recommendation to reduce the discharge to a 10-day suspension,
    and the County timely filed objections in response. The
    Commission sustained the County’s objections in part, rejected
    the recommended 10-day suspension, and issued a new decision
    reducing the discharge to a 30-day suspension with no back pay.
    3.    Proceedings before the trial court.
    The County then filed a petition for writ of administrative
    mandamus under section 1094.5 of the Code of Civil Procedure 4
    seeking an order compelling the Commission to set aside its
    decision to reduce Merritt’s discharge to a 30-day suspension
    without back pay, and directing the Commission to sustain the
    Department’s decision to discharge him. Merritt opposed the
    petition and filed his own petition for the issuance of a writ of
    traditional mandate under section 1085 to require the
    Commission to award him back pay. The court ordered the two
    petitions consolidated, with “[a]ll further documents . . . ordered
    to be filed under County’s Petition as the lead case.”
    A 22-page tentative decision, issued on the morning of the
    hearing on the petitions, summarized the trial court’s conclusions
    regarding the Commission’s findings as follows:
    4    All future statutory references are to the Code of Civil
    Procedure unless otherwise noted.
    7
    “In sum, the Commission’s findings concerning
    Merritt’s general reliance on his social workers without
    micro-managing them, and the fact that he relied on
    Clement’s misrepresentations, are supported. But the
    reasonableness of this reliance was a material issue. There
    was no testimony that Merritt was entitled to rely on
    Clement’s misrepresentations and not do more. The
    Commission failed to make findings concerning
    (a) Merritt’s knowledge of Clement’s failings and whether
    this meant he should not defer to her management of
    Gabriel’s case, (b) Merritt’s duty to ensure that Clement
    understood the risk factors, that she complied with her
    duties, and that she performed her work properly, (c) his
    separate duty to review the online and paper file before
    closing the case, and (d) his failures to act based on his own
    personal knowledge. The facts concerning these issues
    support findings that would undermine the Commission’s
    [1] implicit finding that Merritt’s reliance on Clement was
    reasonable, and [2] its actual findings that Merritt could
    have been more thorough, but the evidence is insufficient to
    sustain his discharge.
    “[¶] . . . [¶]
    “The Commission’s legal conclusion that the County
    did not prove that discharge was an appropriate penalty
    was based on the [implicit] finding that Merritt was
    entitled to rely on Clement’s representations, and Merritt’s
    lack of prior discipline in his nearly 24-year career. In light
    of the court’s finding that the Commission’s findings are
    not supported by substantial evidence, the Commission’s
    conclusion about discharge is not supported by the
    findings.” (Italics added; citations omitted.)
    8
    The court continued, “the Commission failed to provide any
    reasoning or analysis for its imposition of a 30-day suspension
    without back pay instead of firing Merritt. That is the crux of this
    case. The Commission’s findings do not support a 30-day
    suspension, and the Commission must make proper findings and
    then reconsider the appropriate penalty.”
    The trial court, however, refused “to bypass the
    Commission and sustain the [Department]’s decision to discharge
    Merritt,” as the County had advocated. The court reasoned it
    could not “conclude that the Commission reasonably can reach
    only a result of discharge” based on the facts before it and
    without additional findings from the Commission. Thus, the trial
    court determined “[i]t [wa]s preferable that the Commission
    make appropriate findings on the issues discussed [in its
    decision] and reconsider the penalty before any further
    evaluation by the court.”
    The trial court’s tentative ruling also called for issuance of
    a writ “directing the Commission to set aside its decision, issue
    new findings concerning the issues raised [in its decision], and
    reconsider the penalty based on those findings.” The court stated,
    “In issuing the writ, the court does not intrude on the
    Commission’s discretion to conduct a de novo hearing, review the
    record independently, or remand to the Hearing Officer for new
    findings.”
    At the May 5, 2016 hearing, the trial court made clear it
    was not deciding whether the Commission abused its discretion:
    “I don’t think [I] need to decide at this time the County’s
    argument that the Commission abused its discretion by not
    reviewing the record or conducting a de novo hearing.” The court
    noted, however, the County was “free to renew that argument,”
    should the Commission simply remand the matter to the hearing
    officer and again impose a suspension.
    9
    Because the trial court remanded the matter to the
    Commission, it denied Merritt’s petition for back pay as moot. It
    noted, however, the County had conceded “if the Commission’s
    decision to suspend Merritt is upheld, the County will owe
    Merritt back pay from the date of its decision.”
    The trial court’s tentative ruling also had called for entry of
    judgment. At the hearing, however, Merritt’s counsel asked the
    court if it “was inclined to grant an interlocutory remand without
    surrendering jurisdiction that would preserve all of these issues
    before [sic] for a decision after the . . . Commission had made the
    further findings that Your Honor wants.” When asked by the
    court if an interlocutory versus a final order would make a
    difference, Merritt’s counsel responded it would be “a lot cleaner,”
    for the matter to return to the court.
    The court confirmed, “you have no appeal right when I
    remand; right?” Merritt’s counsel agreed. The court further
    explained that if its order was an interlocutory remand, then
    “[t]here would be a return after remand to me in this case. . . .
    [T]hese back pay issues would remain alive if there is an
    interlocutory remand.”
    Directing its comments to Merritt’s counsel, the trial court
    concluded, “If you want me to make it interlocutory, I will. You
    won’t have an appeal right[], though.” After conferring with
    Merritt, his counsel replied, “Your Honor, we would like to
    pursue the interlocutory version of the remand so that the fact
    finding could be done by the Commission while this Court retains
    jurisdiction over the pending and not yet mooted pending
    petitions.”
    The trial court then adopted its tentative, “except the
    remand is interlocutory and not a final judgment,” and clarified
    Merritt’s petition for back pay was currently moot but subject to
    reviver. Additionally, the court issued a minute order that
    10
    granted the County’s petition, but “remand[ed] the matter to the
    [C]ommission for further proceedings as identified in the
    tentative ruling.” The minute order reiterated the trial court’s
    statements during the hearing that “[t]he court’s ruling is an
    interlocutory remand to the commission.”
    4.    The purported appeal and related proceedings in this
    Court.
    Notwithstanding his counsel’s concession that the May 5
    order was interlocutory and nonappealable, on June 30, 2016,
    Merritt filed a notice of appeal from that order. A week later,
    Merritt filed a separate petition for writ of mandate and request
    for immediate stay of the May 5 order. This court granted a
    temporary stay pending its determination of Merritt’s petition,
    but ultimately denied the petition summarily and lifted the stay
    on August 31, 2016.
    During the pendency of this purported appeal, on October
    5, 2016, the Commission announced its post-remand decision to
    discharge Merritt. On October 11, 2016, Merritt filed a petition
    for writ of supersedeas and request for stay of the Commission’s
    October 5 decision. The County then filed a motion to dismiss this
    appeal on October 13, 2016, to which it attached, inter alia, the
    reporter’s transcript of the trial court’s May 5, 2016 hearing.
    On December 8, 2016, this court denied Merritt’s petition
    for writ of supersedeas and ruled it would defer deciding the
    County’s motion to dismiss until such time as it considered the
    purported appeal on its merits.
    On May 30, 2017, the County requested judicial notice of
    records reflecting the Commission’s post-remand proceedings and
    trial court proceedings held after the Commission’s post-remand
    decision, which this court granted. The County also moved to
    augment the record with a transcript of the audio recording of the
    11
    Commission’s April 1, 2015 hearing, and we granted that motion
    also.
    This court requested the parties respond by letter brief to
    the court’s questions concerning the status, and impact, if any, of
    the Commission and trial court proceedings on the current
    purported appeal. The parties filed a joint response on February
    13, 2018, including a request for judicial notice of the
    Commission’s post-remand decision and various trial court
    records reflecting its proceedings held after the Commission’s
    post-remand decision. We now grant that request for judicial
    notice.5
    The records attached to the various requests for judicial
    notice reflect that Merritt filed a new petition for administrative
    mandate under section 1094.5 challenging the Commission’s
    post-remand decision (Merritt’s new petition). The trial court
    related Merritt’s new petition to the cases consolidated under the
    County’s petition and ordered it stayed pending resolution of this
    purported appeal. In their joint letter brief, the parties state the
    trial court deemed the matter relating to the County’s petition
    “ ‘completed’ because it did not envision any further proceedings
    on the County’s writ petition,” and the trial court docket reflects
    the case status as “ ‘Dismissed.’ ” Nothing in the record presented
    to this court, however, indicates that a written dismissal order,
    signed by the trial judge, was filed in this action. Thus, the case
    5    We have not been asked to – and do not – otherwise
    address the Commission’s October 5, 2016 post-remand decision
    upholding Merritt’s discharge. That decision was finalized
    October 11, 2017.
    12
    was not dismissed and no appealable final judgment was
    entered.6
    DISCUSSION
    1.    Dhillon v. John Muir Health.
    After this purported appeal was filed, but before the
    completion of briefing, the California Supreme Court issued its
    decision in Dhillon. In Dhillon, our Supreme Court addressed
    whether a trial court’s order on administrative mandamus
    remanding the matter for further administrative proceedings is
    an appealable order.7 The Supreme Court decidedly did not
    undertake to answer “ ‘the broad question whether remands to
    administrative agencies are always immediately appealable.’ ”
    (Id. at pp. 1116.) Focusing on the specific facts before it, the
    Supreme Court concluded a “superior court’s order partially
    granting [a surgeon’s] writ petition was an appealable final
    judgment.” (Ibid.)
    Dhillon involved a surgeon who had clinical privileges at
    two hospitals.8 After he was accused of verbal and physical abuse
    toward a colleague, the hospitals investigated and ordered both
    doctors to attend anger management classes. 
    (Dhillion, supra
    ,
    2 Cal.Aapp.5th at p. 1112.) The surgeon refused to attend the
    classes and requested an administrative hearing when he was
    told he would lose his clinical privileges at the hospitals if he did
    not comply. (Ibid.) The hospitals responded by asserting he was
    not entitled to such a hearing. (Ibid.) The surgeon then sought
    administrative mandamus in the superior court in the form of an
    6    Section 581d; Powell v. County of Orange (2011)
    
    197 Cal. App. 4th 1573
    , 1577-1578.
    7     
    Dhillon, supra
    , 2 Cal.5th at p. 1112.
    8     
    Dhillon, supra
    , 2 Cal.5th at p. 1112.
    13
    order to: compel the hospitals to grant him a hearing and vacate
    the imposition of discipline, declare the hospitals’ bylaws (to the
    extent they precluded a hearing) violated due process, and
    authorize the surgeon to file a lawsuit against the hospitals for
    damages. (Id. at pp. 1112-1113.) The trial court granted the writ
    petition in part and ordered the hospitals to grant the surgeon a
    hearing. (Id. at p. 1113.) The hospitals appealed; the Court of
    Appeal dismissed the appeal for lack of jurisdiction; and the
    Supreme Court reversed. (Id. at pp. 1113-1114, 1120.)
    As noted above, the Supreme Court recognized the general
    rule that “a judgment is final, and therefore appealable, ‘ “ ‘when
    it terminates the litigation between the parties on the merits of
    the case and leaves nothing to be done but to enforce by execution
    what has been determined. ’ ” ’ ”9 As we have said, the Supreme
    Court adopted “ ‘ “[a]s a general test” ’ ” for finality, “ ‘ “that
    where no issue is left for future consideration except the fact of
    compliance or noncompliance with the terms of the first decree,
    that decree is final, but where anything further in the nature of
    judicial action on the part of the court is essential to a final
    determination of the rights of the parties, the decree is
    interlocutory.” ’ ” (
    Dhillon, supra
    , 2 Cal.5th at p. 1115, quoting
    Griset v. Fair Political Practices Com. (2001) 
    25 Cal. 4th 688
    , 698
    (Griset).)10
    9     
    Dhillon, supra
    , 2 Cal.5th at p.1115, quoting Sullivan v.
    Delta Air Lines, Inc. (1997) 
    15 Cal. 4th 288
    , 304.
    10    The Supreme Court also reiterated its “ ‘ “well-established
    policy, based upon the remedial character of the right of appeal,
    of according that right in doubtful cases ‘when such can be
    accomplished without doing violence to applicable rules.’ ” ’
    [Citation.]” (
    Dhillon, supra
    , 2 Cal.5th at p. 1115.)
    14
    Applying these principles, the Supreme Court concluded
    the trial court’s order was final and appealable because it granted
    or denied each of the surgeon’s claims and “did not reserve
    jurisdiction to consider any issues.” (Id. at pp. 1116-1117.) Thus,
    the Court reasoned, “once the trial court issued the writ, nothing
    remained to be done in that court; no issue [was then left for the
    court’s ‘ “future consideration except the fact of compliance or
    noncompliance with the terms of the first decree.” ’ ” (
    Dhillon, supra
    , 2 Cal.App.5th at p. 1117, quoting 
    Griset, supra
    , 25 Cal.4th
    at p. 698.) The Dhillon court also considered the practicalities,
    reasoning, “the trial court’s interpretation of [the hospitals’]
    bylaws may effectively evade review” if the hospitals did not have
    an immediate right of appeal. (Dhillon, at p. 1117.) As the Court
    explained, “[i]f the administrative proceedings [we]re again
    ultimately resolved adversely to [the surgeon], [the hospitals]
    would have no basis for seeking review of the decision,” leaving
    the hospitals unable to challenge the surgeon’s entitlement to a
    hearing. (Id. at pp. 1117-1118.)
    2.     The trial court’s order was not a final judgment.
    Considering the particular circumstances of this case as our
    Supreme Court has directed, we conclude the trial court’s order
    here was not a final judgment.
    First, the form of the order was most certainly
    interlocutory. The trial court expressly stated it was interlocutory
    and did not enter judgment. At the hearing on the petitions, and
    at Merritt’s request, it instead made its order an “interlocutory
    remand” so that any return after remand would come to the trial
    15
    court, including any issues of Merritt’s back pay.11 Additionally,
    the trial court twice confirmed Merritt’s counsel’s understanding
    that Merritt would not have a right to appeal from the order. We
    are cognizant, however, that “ ‘ “[i]t is not the form of the decree
    but the substance and effect of the adjudication which is
    determinative.” ’ ”12 Thus, second, and more important, the
    substance and effect of the trial court’s order also was
    interlocutory. It was not a final judgment. The order did not
    resolve all matters leaving only the consideration of the “fact of
    compliance or non compliance.” In contrast to Dhillon, where the
    trial court granted or denied all relief requested by the petition,
    here, the trial court did not.
    The trial court expressly deferred its decision about
    whether the Commission abused its discretion, the very question
    posed by the County’s petition. Instead, the trial court directed
    the Commission to make additional findings and reconsider the
    penalty to be imposed on Merritt based on those additional
    findings. The trial court was clear: without additional findings, it
    could not “fully evaluate the penalty that was imposed.” Whereas
    in Dhillon, the lower court would have needed only to ensure the
    11    Merritt contends the court’s continuing jurisdiction over
    any revived issues of back pay is irrelevant because the back pay
    issues concerned Merritt’s, not the County’s petition. We note,
    however, the trial court did not maintain jurisdiction to consider
    only the back pay issues. During the May 5, 2016 hearing, the
    court and parties made clear “any return” after remand would go
    to the trial court. Merritt’s counsel also confirmed Merritt wanted
    an interlocutory order “so that the fact finding could be done by
    the Commission while [the trial court] retains jurisdiction over
    the pending and not yet mooted pending petitions.”
    12    
    Dhillon, supra
    , 2 Cal.5th at p. 1115.
    16
    hospitals did in fact provide the surgeon a hearing – the relief the
    petition requested – here, the trial court retained jurisdiction to
    reconsider the Commission’s new decision, if needed, to
    determine whether the Commission’s post-remand findings were
    sufficient to support whatever penalty (if any) the Commission
    ultimately decided to impose.
    For this reason, as a practical matter, the trial court’s May
    5 order would not evade appellate review even though not
    immediately appealable.13 Should the trial court uphold the
    Commission’s post-remand decision and deny Merritt’s new
    petition, Merritt may appeal to this court from that final
    judgment and argue the Commission’s original decision issued
    before the remand was proper. Until that time, however, the
    issue is not yet ripe for review.14
    13    See 
    Dhillon, supra
    , 2 Cal.5th at pp. 1117-1118 & fn. 4; see
    also Talmo v. Civil Service Com. (1991) 
    231 Cal. App. 3d 210
    , 224
    (Talmo) (concluding county was not required to immediately
    appeal the trial court’s order requiring civil service commission to
    set aside its decision to discharge sheriff’s deputy and make new
    findings).
    14    Cf. 
    Talmo, supra
    , 231 Cal.App.3d at p. 226 (finding issue of
    whether commission abused its discretion “now ripe for appellate
    review” [from trial court’s order following civil service
    commission’s post-remand decision]).
    17
    The substance of the court’s order, therefore, was
    interlocutory because the court retained the ability to review
    anew the Commission’s post-remand decision.15
    Moreover, the trial court made clear its order did not
    “intrude on the Commission’s discretion to conduct a de novo
    hearing, review the record independently, or remand to the
    [h]earing [o]fficer for new findings.” Accordingly, after making
    additional findings of fact, the Commission was free to reinstate
    its original penalty, craft a new penalty, or sustain the
    Department’s original discharge of Merritt.
    Thus, the trial court’s order is distinctly different from that
    in Carroll v. Civil Service Commission,16 which Merritt urges this
    court to follow. There, the trial court explicitly ruled the firing of
    a civil service employee – after taking one dollar from the
    employees’ coffee fund – was an abuse of the commission’s
    discretion.17 The Court of Appeal held the trial court’s writ of
    mandate directing the commission to set aside its order and
    15     See Ng. v. State Personnel Bd. (1977) 
    68 Cal. App. 3d 600
    ,
    603-604 (finding remand to State Personnel Board to reconsider
    its decision an unappealable interlocutory order because “[t]he
    pending mandate proceeding vested the court with continuing
    jurisdiction to review the personnel board’s final decision
    rendered after compliance with the interlocutory order”).
    16     (1970) 
    11 Cal. App. 3d 727
    (Carroll). The Supreme Court in
    Dhillon referenced Carroll as one in a line of cases where the
    Court of Appeal had stated “a trial court’s order on
    administrative mandamus remanding the matter for further
    administrative proceedings is appealable,” but did not resolve
    whether the case was correctly decided. (
    Dhillon, supra
    , 2 Cal.5th
    at p. 1114.)
    17    
    Carroll, supra
    , 11 Cal.App.3d at pp. 729-730.
    18
    redetermine a “ ‘fair, just and reasonable’ ” penalty after
    reexamining the evidence and record was an appealable
    judgment. (Id. at pp. 729-730, 733.)
    In stark contrast to the lower court in Carroll, here the
    trial court explicitly declined to find the Commission abused its
    discretion. Indeed, the court specifically noted it could not
    “conclude that the Commission reasonabl[y] can reach only a
    result of discharge,” and instead ordered the Commission to
    “make appropriate findings on the issues and reconsider the
    penalty before further evaluation of the Court.” The court refused
    to order the Commission to sustain Merritt’s discharge – or set it
    aside – whereas the lower court in Carroll mandated the
    commission reinstate the employee.18
    In other words, the trial court here, “unlike the trial court
    in Carroll, . . . did not find [the commission’s decision] an abuse of
    discretion; only that it might be an abuse of discretion depending
    on the new findings after remand.”19 Accordingly, the trial court’s
    order was interlocutory not only in form, but also in substance.
    3.     We decline to treat Merritt’s purported appeal as a
    petition for writ of mandate.
    We previously denied summarily Merritt’s motion to stay
    the proceedings below, and his petition for a writ of mandate to
    set aside the May 5, 2016 order. Although we have discretion to
    treat a non-appealable order as a petition for writ of mandate in
    the appropriate case,20 we decline to do so here. As we have said,
    the issues raised in Merritt’s purported appeal still will be
    18    
    Carroll, supra
    , 11 Cal.App.3d at p. 731.
    19    
    Talmo, supra
    , 231 Cal.App.3d at p. 226.
    20   City of Los Angeles v. Superior Court (2015)
    
    234 Cal. App. 4th 275
    , 280-281.
    19
    present and justiciable if and when we are presented with an
    appeal from a final judgment on the Commission’s post-remand
    decision. At that time, when we will have a complete record to
    consider, Merritt may raise his argument that the trial court’s
    May 5, 2016 order remanding the matter to the Commission for
    further findings was in error, and the County may argue to the
    contrary.
    Accordingly, we dismiss Merritt’s purported appeal. We
    recommend that the trial court defer entry of judgment on the
    various petitions until all the proceedings are completed.
    DISPOSITION
    The appeal is dismissed.
    CERTIFIED FOR PUBLICATION
    CURREY, J.*
    We concur:
    LAVIN, Acting P. J.
    EGERTON, J.
    *     Judge of the Los Angeles Superior Court, assigned by the
    Chief Justice pursuant to article VI, section 6 of the California
    Constitution.
    20
    

Document Info

Docket Number: B275974

Filed Date: 4/12/2018

Precedential Status: Precedential

Modified Date: 4/17/2021