Cnty. of L. A. v. L. A. Cnty. Civil Serv. Comm'n
Cnty. of L. A. v. L. A. Cnty. Civil Serv. Comm'n
Opinion of the Court
*176INTRODUCTION 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.
*177Merritt 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.
On May 5, 2016, the Superior Court, having concluded the Commission set forth insufficient findings to "bridge the analytic gap"
In the recent case of Dhillon v. John Muir Health ,
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.
*267After 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 *179sexually 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.
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."
*180• "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 *268did not sustain its "burden of proof that discharge is the appropriate level of 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
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:
"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 *181management 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.)
The court continued, "the Commission failed to provide any reasoning or analysis *269for 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 *182decide 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.
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 *270that 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 *183appeal 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 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.
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 *184the 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 was not dismissed and no *271appealable final judgment was entered.
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.
Dhillon involved a surgeon who had clinical privileges at two hospitals.
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 *185be done but to enforce by execution what has been determined. ' " ' "
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,
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 *186"interlocutory remand" so that any return after remand would come to the trial court, including any issues of Merritt's back pay.
The trial court expressly deferred its decision about whether the Commission *273abused 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 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.
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.
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 ,
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 *188Commission to sustain Merritt's discharge-or set it aside-whereas the lower court in Carroll mandated the commission reinstate the employee.
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."
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,
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.
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.
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.
Topanga Assn. for a Scenic Community v. County of Los Angeles (1974)
(2017)
All future statutory references are to the Code of Civil Procedure unless otherwise noted.
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.
Section 581d; Powell v. County of Orange (2011)
Dhillon, supra, 2 Cal.5th at p. 1112,
Dhillon, supra, 2 Cal.5th at p. 1112,
Dhillon, supra, 2 Cal.5th at p.1115,
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,
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."
Dhillon, supra, 2 Cal.5th at p. 1115,
See Dhillon, supra, 2 Cal.5th at pp. 1117-1118 & fn. 4,
Cf. Talmo, supra, 231 Cal.App.3d at p. 226,
See Ng v. State Personnel Bd. (1977)
(1970)
Carroll, supra, 11 Cal.App.3d at pp. 729-730,
City of Los Angeles v. Superior Court (2015)
Case-law data current through December 31, 2025. Source: CourtListener bulk data.