Filed 2/8/24

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

NATHAN JACKSON,

Plaintiff and Appellant,

v.

BOARD OF CIVIL SERVICE 

COMMISSIONERS OF THE 

CITY OF LOS ANGELES,

Defendant and Respondent;

CITY OF LOS ANGELES, 

Real Party in Interest and 

Respondent.

B328414

 

(Los Angeles County

Super. Ct. No. 22STCP01670)

 

APPEAL from a judgment of the Superior Court of 

Los Angeles County, James C. Chalfant, Judge. Dismissed. 

Nathan Jackson, in pro per., for Plaintiff and Appellant.

Hydee Feldstein Soto, City Attorney, Vivienne A. 

Swanigan, Assistant City Attorney, and Travis T. Hall, Deputy 

City Attorney, for Defendant and Respondent and Real Party in 

Interest and Respondent.

_________________
2

INTRODUCTION

Nathan Jackson was a detention officer with the 

Los Angeles Police Department. After a three-week absence, he

arrived late for his scheduled shift, left without informing his 

supervisors, and did not return. The City of Los Angeles served 

Jackson with notice of a proposed 10-day suspension, asserting

four counts arising from the incident, and eventually imposed the 

suspension. Following an internal appeals process, the Board of 

Civil Service Commissioners sustained each count and upheld the

suspension. 

Jackson filed a petition for writ of administrative mandate

asking the court to order the Board to set aside his suspension 

and award him back pay. The court granted the petition in part 

and set aside the suspension. The court found that the weight of 

the evidence supported the Board’s findings on three of the four 

counts, but that on the remaining count the court directed the 

Board to reconsider whether Jackson’s actions warranted 

discipline under the Department’s internal policies. The court 

also directed the Board to reconsider whether the City’s decision 

to amend one of the counts after serving Jackson with the initial 

notice of proposed discipline prejudiced Jackson’s defense and 

entitled him to back pay. Finally, the court ordered the Board to 

reconsider the appropriate penalty.

Jackson appeals from the judgment granting his petition in 

part, contending (among other things) that substantial evidence 

did not support the findings on any of the counts and that he was 

entitled to back pay as a matter of law. We hold that, because 

the superior court vacated the suspension and remanded the 

matter for the Board to reconsider its findings and the 
3

appropriate discipline, and because Jackson will have an 

opportunity to challenge any ultimate adverse disciplinary 

action, the judgment is not an appealable final judgment. 

Therefore, we dismiss the appeal.

FACTUAL AND PROCEDURAL BACKGROUND

A. Jackson Arrives Late for Work Following a 

Three-week Absence

Jackson worked as a detention officer for the Los Angeles 

Police Department.1 Beginning in late February 2018 he was 

absent from work. According to his supervisor, Sergeant Victor 

Martinez, Jackson was scheduled to return to work on March 18, 

2018.

2 Jackson was not present during roll call at 6:00 a.m., but 

at 7:35 a.m. he went into Sergeant Martinez’s office, apologized 

for being late, and attempted to start his shift. 

According to Sergeant Martinez, Jackson was not fit to

work that morning; he was slurring his speech, had difficulty 

communicating, was making unintelligible statements, and was 

shaking. Jackson was also not in full uniform; he was wearing a 

visible, dirty undershirt and, though he was wearing his work 

pants, he was not wearing his work boots. Sergeant Martinez 

asked Jackson if he had submitted a doctor’s note to the 

1 “Detention officers are responsible for maintaining 

arrestees in custody once they are delivered by patrol officers. 

They receive the arrestees, identify them and the charges against 

them, hold their property, lead them about the detention facility, 

and otherwise control and supervise them.” (Sienkiewicz v. 

County of Santa Cruz (1987) 195 Cal.App.3d 134, 138.)

2 Jackson disputes he was scheduled to work that day.
4

appropriate coordinator, which Sergeant Martinez had requested 

during Jackson’s absence. Jackson said that he had not, but that 

he had the doctor’s note in his car or in a bag. Jackson left the 

facility without informing anyone and did not return. 

A few hours later, Sergeant Martinez and Sergeant 

Nicholas Balzano went to Jackson’s home. Jackson answered the 

door and gave them a note excusing him from work that day. The 

note, however, was time-stamped 9:12 a.m. that day, which was 

an hour and a half after Jackson showed up for work. Jackson 

returned to work the following day. 

At some point the City signed a “Non-occupational Sick, 

Revisit, or Injury Report” certifying Jackson was off duty from

February 26, 2018 to March 18, 2018. On March 23, 2018

Jackson submitted a request under the Family and Medical 

Leave Act of 1993 (FMLA) for intermittent medical leave,

backdating the request to January 25, 2018, and seeking 

approval for leave until July 24, 2018. The City approved the 

request.

B. The City Suspends Jackson for 10 days

In February 2019 the City served Jackson with notice of a 

proposed 10-day suspension and supporting investigative 

materials pursuant to Skelly v. State Personnel Bd. (1975)

15 Cal.3d 194 (Skelly).

3 The notice included four counts against 

3 In Skelly, supra, 15 Cal.3d 194 the Supreme Court held a 

permanent civil service employee has due process rights to 

certain pre-discipline safeguards, including “notice of the 

proposed action, the reasons therefor, a copy of the charges and 

materials upon which the action is based, and the right to 
5

Jackson, all arising from the March 18, 2018 incident: reporting 

late for duty (count 1); reporting “unfit for duty” (count 2); leaving 

his post “without authorization” (count 3); and “refusing to 

provide a doctor’s note as directed” (count 4). An adjudication 

report accompanying the notice stated: “Jackson reported to 

work late, out of uniform, and displaying the objective symptoms 

of being under the influence.” 

In support of the proposed suspension, the adjudication 

report included recommended penalty ranges for the conduct 

alleged in the notice. In particular, the recommended minimum 

penalty for a first offense for “[r]eporting for duty under the 

influence of drugs or alcohol which results in unfitness to work”

(i.e., count 2) was a 10-day suspension. The recommended 

minimum penalty for the conduct supporting the remaining 

counts was less severe, ranging from written notice to a six-day 

suspension.

4

The notice informed Jackson that he had until March 20, 

2019 to respond to the charges. Jackson did not. On May 6, 2019 

the City served Jackson with its final notice of the 10-day 

suspension. The allegations in counts 1, 3, and 4 of the final 

notice were essentially the same as those in the earlier notice. In 

count 2, however, the City alleged that Jackson had “failed to 

wear [his] official Department approved uniform,” not that he 

reported unfit for duty or under the influence.

respond, either orally or in writing, to the authority initially 

imposing discipline.” (Id. at p. 215.)

4 The recommended maximum penalty for the conduct 

supporting three of the four counts, including count 2, was

discharge.
6

C. Jackson Files an Unsuccessful Administrative Appeal

Jackson appealed his suspension to the Board. Jackson 

contended the City violated Skelly, supra, 15 Cal.3d 194 by 

amending the allegations in the final notice of discipline. He also 

contended the evidence did not support the allegations in the 

notice because the City had retroactively granted him FMLA sick 

leave for a period that covered the incident, he was not on duty 

that day, and he eventually submitted the requested doctor’s 

note.

The hearing on Jackson’s administrative appeal took place 

over three days. Following the hearing, the hearing examiner5

issued a report to the Board finding (without explanation) that 

the City had fully complied with the requirements of Skelly and

the procedures prescribed by the City’s personnel manuals, that 

the evidence substantiated each of the counts, and that the 

10-day suspension was appropriate. At a subsequent hearing, 

the Board adopted the hearing examiner’s findings and sustained

each of the counts and the suspension.

5 Rule 12, section 12.3 of the Rules of the Board of Civil 

Service Commissioners of the City of Los Angeles provides that 

disciplinary hearings “shall be conducted by hearing examiners 

pursuant to these Rules” and “Los Angeles Administrative Code 

Sections 19.29 through 19.35 . . . .” (See Los Angeles Admin. 

Code, § 19.29 [“[w]henever an appeal . . . is made to a board by 

virtue of any law, or whenever a board is required to conduct any 

investigation or hearing, such board may appoint one or more 

examiners”].)
7

D. Jackson Files a Petition for Writ of Administrative 

Mandate

Jackson filed a petition for writ of administrative mandate

seeking an order directing the Board to set aside its decision and 

to award him back pay because the Board violated the 

requirements of Skelly. The court granted the petition in part. 

The court found there was “compelling evidence that Jackson was 

reporting for duty on March 18, 2018,” notwithstanding his 

assertion to the contrary, and that Jackson arrived an hour and a

half late for his scheduled shift. Nevertheless, on count 1 the 

court observed that the City’s Jail Operations Manual defined 

excessive tardiness as arriving late on at least three occasions in 

a four-week period. Therefore, the court ordered the Board to 

determine “whether [Jackson] can be disciplined . . . for reporting 

late” under this standard.

On counts 2, 3, and 4, the court found the evidence 

supported the findings. On count 2, however, the court also 

found the hearing examiner “did not proceed in a manner 

required by law” because he did not analyze whether the City

violated the requirements of Skelly when it amended count 2

from reporting unfit for duty to reporting for duty not in 

uniform.

6 In particular, the court stated, the amendment may 

have prejudiced Jackson’s ability to argue for a lesser penalty

without the “more serious” drug-or-alcohol abuse allegation 

“hanging over his head.” The court ordered the Board to 

“[d]etermine whether Skelly was violated for the amended 

Count 2” and if so, “whether [Jackson] was prejudiced by not 

6 Because we are dismissing the appeal, we express no 

opinion on the correctness of this ruling.
8

being able to argue for a lesser penalty” and therefore entitled to 

any back pay.

Finally, the court ordered the Board to “reconsider the 

penalty using [Jackson’s] permissible disciplinary history.” The 

court also authorized the Board to take additional evidence if 

necessary. The court entered judgment granting the petition in 

part and issued a writ of mandate. Jackson timely appealed. 

DISCUSSION

A. The Judgment Is Not Appealable

Jackson argues substantial evidence did not support the 

findings on any of the four counts. He also argues that, because 

the City violated his Skelly rights, he was entitled to back pay.

7

We sent the parties a letter under Government Code 

section 68081 requesting supplemental briefing on whether—

“focusing on the nature of the particular remand order” (Dhillon 

v. John Muir Health (2017) 2 Cal.5th 1109, 1116 (Dhillon))—the 

superior court’s judgment is an appealable final judgment. 

Because we conclude it is not, we dismiss the appeal.

7 Where an employer has disciplined an employee without 

affording the procedural safeguards required by Skelly, “the 

remedy for the employee . . . is to award back pay for the period of 

wrongful discipline.” (Barber v. State Personnel Bd. (1976) 

18 Cal.3d 395, 402.) The employee is generally entitled to 

back pay from the date of discipline to “the date on which he is 

given a meaningful opportunity to respond” to the charges, “less 

interim wages earned.” (Kempland v. Regents of University of 

California (1984) 155 Cal.App.3d 644, 651.)
9

1. Applicable Law

Code of Civil Procedure “[s]ection 904.1, subdivision (a), 

governs the right to appeal in civil actions. It codifies the ‘one 

final judgment rule,’ which provides that an ‘“‘an appeal may be 

taken only from the final judgment in an entire action.’”’” (Kaiser 

Foundation Health Plan, Inc. v. Superior Court (2017) 

13 Cal.App.5th 1125, 1138; see In re Baycol Cases I & II (2011) 

51 Cal.4th 751, 756; see also Dhillon, supra, 2 Cal.5th at p. 1115 

[“In general, an adverse ruling in a judicial proceeding is 

appealable once the trial court renders a final judgment.”].) 

Because an “application for a writ of administrative mandamus is 

a ‘special proceeding of a civil nature’ governed by the provisions 

of part 3 of the Code of Civil Procedure,” the one final judgment 

rule “applies equally in administrative mandamus proceedings.” 

(Dhillon, at p. 1115.)8 “The existence of an appealable judgment 

is a jurisdictional prerequisite to an appeal.” (Jennings v. 

Marralle (1994) 8 Cal.4th 121, 126; see Brown v. Upside Gading, 

LP (2019) 42 Cal.App.5th 140, 144.)

2. Dhillon

In Dhillon, supra, 2 Cal.5th 1109 the Supreme Court 

addressed the appealability of an order or judgment on a petition 

for writ of administrative mandate that, like the judgment here, 

8 Section 1110 of the Code of Civil Procedure provides: 

“The provisions of Part II of this Code relative to new trials and 

appeals, except in so far as they are inconsistent with the 

provisions of [Title 1 of Part 3], apply to the proceedings 

mentioned” in Title 1 of Part 3. Title 1 of Part 3 contains 

section 1094.5, which governs petitions for writ of administrative 

mandate, and Part 2 contains section 904.1, subdivision (a), 

which codifies the one final judgment rule. 
10

“does not grant substantive relief, but instead remands the cause 

for further proceedings before the administrative agency.” 

(Dhillon, at p. 1114.) Prior to the Supreme Court’s decision in 

Dhillon, courts had reached different conclusions on this issue. 

(Compare Gillis v. Dental Bd. of California (2012) 

206 Cal.App.4th 311, 318 [“‘A remand order to an administrative 

body is not appealable.’”] with Quintanar v. County of Riverside

(2014) 230 Cal.App.4th 1226, 1231-1233 [judgment remanding a 

disciplinary proceeding to a hearing officer to determine 

appropriate discipline is appealable].)

Dhillon involved a dispute between a doctor and the

operator of medical facilities where the doctor had clinical 

privileges. (Dhillon, supra, 2 Cal.5th at p. 1112.) After a 

colleague lodged a complaint against the doctor, the hospital

operator required the doctor to attend an anger-management 

program; when the doctor refused, the hospital operator notified 

the doctor it intended to suspend his clinical privileges for 

14 days. (Ibid.) The doctor requested a hearing before the 

hospital operator’s judicial review committee, which the hospital

operator declined to provide. (Ibid.) The doctor filed a petition 

for writ of administrative mandate in the superior court. The

court granted the petition in part, ruling the hospital operator

had violated the doctor’s due process rights by suspending his 

clinical privileges without a hearing and ordered the hospital 

operator to give the doctor a hearing. (Id. at p. 1113.) 

The Court of Appeal dismissed the hospital operator’s

appeal from the judgment, but the Supreme Court reversed.

Citing the United States Supreme Court’s decision in Sullivan v. 

Finkelstein (1990) 496 U.S. 617, the California Supreme Court 

stated: “[W]e do not here undertake to answer ‘the broad 
11

question whether remands to administrative agencies are always 

immediately appealable.’ [Citation.] Instead, focusing on the 

nature of the particular remand order before us,” two sets of 

“considerations lead us to conclude that the superior court’s order 

partially granting [the] writ petition was an appealable final 

judgment.” (Dhillon, supra, 2 Cal.5th at p. 1116.) First, the 

Supreme Court explained, “the superior court either granted or 

denied each of [the doctor’s] claims” and “did not reserve 

jurisdiction to consider any issues.” (Id. at pp. 1116-1117.) 

Therefore, “as a formal matter, . . . nothing remained to be done” 

in the superior court, and “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.”’” (Id. at 

p. 1117; see Griset v. Fair Political Practices Com. (2001) 

25 Cal.4th 688, 698.) 

Second, the Supreme Court observed that, “as a practical 

matter,” if the hospital operator could not immediately appeal, 

“the trial court’s interpretation of [the hospital operator’s] bylaws 

may effectively evade review.” (Dhillon, supra, 2 Cal.5th at 

p. 1117.) The Supreme Court explained the hospital operator’s

review board could not “overturn the superior court’s 

determination that [the doctor] was entitled to the . . . hearing in 

the first place.” (Ibid.) Therefore, if the hospital operator

ultimately prevailed in the administrative proceedings, it “would 

have no basis for seeking review of the decision,” and “that would 

be the end of the matter.” (Id. at pp. 1117-1118.)
12

3. The Judgment Is Not a Final Appealable

Judgment

The Supreme Court’s first reason for concluding the 

judgment in Dhillon was appealable applies here. The trial court 

granted (in part) Jackson’s claim for a writ of administrative 

mandate and did not reserve jurisdiction to consider any other 

issues. Nothing remained to be done in the trial court—at least 

not unless and until on remand the Board imposed a new 

disciplinary penalty and Jackson filed another petition for 

administrative mandate.

But the second reason—that the issues raised on appeal 

may effectively evade review if there is no right to immediate 

appeal—does not apply here. As discussed, Jackson challenges 

the findings on each of the four counts and argues he was entitled 

to back pay because the City violated his Skelly rights. On 

remand, because the trial court set aside the Board’s decision, the

Board will reconsider the finding on count 1 (reporting late) and 

the appropriate disciplinary penalty for all counts, as well as 

whether the City violated Jackson’s Skelly rights in connection 

with count 2 (reporting unfit/reporting not in uniform). If the 

Board imposes different discipline or declines to award Jackson 

back pay, Jackson may file a new or supplemental petition for 

writ of mandate and, if unsatisfied with the outcome, can appeal 

from the ensuing judgment. (Dhillon, supra, 2 Cal.5th at p. 1113; 

see Kumar v. National Medical Enterprises, Inc. (1990) 

218 Cal.App.3d 1050, 1056 (Kumar) [where the trial court set 

aside a hospital board’s prior disciplinary decision action against 

a doctor, the doctor was “not aggrieved until such time as he may 

be adversely affected by a ‘new’ final decision by the [b]oard,” at 

which point he could “then seek judicial review a second time”]; 
13

Talmo v. Civil Service Com. (1991) 231 Cal.App.3d 210, 221-223 

[where the trial court initially entered judgment granting a 

petition for writ of mandate and remanding disciplinary 

proceedings to an agency for further consideration, the order 

granting a supplemental writ petition following a new agency 

decision was appealable].) And in that appeal, as counsel for the 

Board stipulated at oral argument, Jackson may challenge the 

proceedings on remand and any intermediate adverse rulings 

that necessarily affected the judgment, including the trial court’s 

order granting in part the first writ petition. (See Code Civ. 

Proc., § 906 [on appeal from final judgment, “the reviewing court 

may review . . . any intermediate ruling, proceeding, order or 

decision which involves the merits or necessarily affects the 

judgment or order appealed from or which substantially affects 

the rights of a party”]; Lopez v. Brown (2013) 217 Cal.App.4th 

1114, 1132 [same].)

In Dhillon the Supreme Court relied on both 

considerations—that the trial court did not retain jurisdiction 

and that the hospital operator’s challenge to the order could 

effectively evade review—in concluding the judgment in that case 

was an appealable final judgment. The appealability of a 

judgment remanding proceedings to an agency that satisfies the 

first condition but not the second is a closer question, one the 

Supreme Court has not addressed. Under the circumstances

here, however, we conclude the judgment is not appealable. 

The court’s decision in Kumar, supra, 218 Cal.App.3d 1050

is instructive. The facts in Kumar were similar to those in 

Dhillon; the executive committee of a hospital sought to 

terminate a physician’s privileges. (Id. at p. 1052.) Following an 

internal review process, the governing board of the hospital 
14

terminated the physician’s privileges and conditioned

reinstatement of those privileges on the physician completing a 

fellowship. (Id. at p. 1053.) The physician filed a petition for writ 

of mandate, claiming he did not receive a “fair procedure.” (Id. at 

pp. 1053-1054.) The trial court granted the petition in part, “set 

aside” the board’s decision, and remanded for further 

proceedings. (Id. at p. 1054.) 

The physician appealed, arguing the trial court should have 

unconditionally reinstated him. The court in Kumar dismissed 

the appeal, holding the physician had to exhaust his 

administrative remedies before seeking any further judicial 

relief. The court in Kumar stated the trial court had reversed the 

“only ‘final’ decision” rendered by the board that adversely 

affected the physician—the board’s decision terminating the 

physician’s privilege. Therefore, the court concluded, the 

physician had to again obtain a final administrative decision 

before seeking further relief in the courts. (Kumar, supra, 

218 Cal.App.3d at p. 1055.) The same analysis applies here. The 

trial court vacated the Board’s decision upholding Jackson’s 

suspension. Therefore, there is no longer a final administrative 

decision from which Jackson can seek judicial relief, and Jackson 

must exhaust his administrative remedies before seeking any 

further relief in the courts. (See Plantier v. Ramona Municipal 

Water Dist. (2019) 7 Cal.5th 372, 382-383 [“‘an administrative 

remedy is exhausted only upon “termination of all available, 

nonduplicative administrative review procedures”’”; “‘[t]he rule 

“is not a matter of judicial discretion, but is a fundamental rule of 

procedure . . . binding upon all courts”’”].)

One could argue that, in light of Dhillon, Kumar (which 

predated Dhillon) may not still be good law. In Dhillon, supra,
15

2 Cal.5th 1109, however, the Supreme Court declined to decide

whether Kumar was correctly decided. The Supreme Court 

distinguished Kumar because the doctor in Kumar “would have 

had a later opportunity to raise an appellate challenge to the 

hospital’s discipline if he did not prevail in the administrative 

hearing: He could file a second petition for administrative 

mandamus, and if the trial court ruled against him, he could 

appeal from the denial of his petition.” (Dhillon, at p. 1118,

fn. 4.) “This practical consideration,” according to the Supreme 

Court in Dhillon, distinguished Kumar on its facts. (Ibid.) The

same practical consideration distinguishes this case from Dhillon. 

Like the doctor in Kumar, Jackson may file another petition for 

administrative mandate if he does not prevail before the Board

on remand, and if the trial court rules against him, he may 

appeal from the judgment denying that petition. (See County of 

Los Angeles v. Los Angeles County Civil Service Com. (2018) 

22 Cal.App.5th 174, 186 [“as a practical matter,” the trial court’s 

order remanding a disciplinary proceeding to a civil service 

commission to make additional findings and reconsider the 

penalty “would not evade appellate review even though not 

immediately appealable” because, if the trial court upheld the 

commission’s adverse postremand decision, the employee could 

appeal from the final judgment].)9 The judgment here is not 

appealable for the same reason the judgment in Kumar was not 

appealable.

9 In County of Los Angeles v. Los Angeles County Civil 

Service Com., supra, 22 Cal.App.5th 174 the trial court retained 

jurisdiction to review the Commission’s postremand decision. (Id. 

at p. 186.) Therefore, the first consideration in Dhillon applied. 
16

Similar remand orders are not appealable in federal 

court.

10 Under title 28 United States Code section 1291 the 

federal courts of appeal generally “have jurisdiction only over 

appeals from final orders . . . .” (Chugach Alaska Corp. v. Lujan 

(9th Cir. 1990) 915 F.2d 454, 457; see 28 U.S.C. § 1291 [“[t]he 

courts of appeals . . . shall have jurisdiction of appeals from all 

final decisions of the district courts of the United States”]; 

Behrens v. Pelletier (1996) 516 U.S. 299, 305 [“The requirement of 

finality precludes consideration of decisions that are subject to 

revision, and even of ‘fully consummated decisions [that] are but 

steps towards final judgment in which they will merge.’”].) 

Remand orders to administrative agencies “generally are not 

‘final decisions’ for purposes of section 1291.” (Alsea Valley 

Alliance v. Department of Commerce (9th Cir. 2004) 358 F.3d 

1181, 1184; see Chugach, at p. 457; Lakes Pilots Assn., Inc. v. 

U.S. Coast Guard (D.C. Cir. 2004) 359 F.3d 624, 625 (Lakes Pilots 

Assn.).) A limited exception applies “‘where (1) the district court 

conclusively resolves a separable legal issue, (2) the remand order 

forces the agency to apply a potentially erroneous rule which may 

result in a wasted proceeding, and (3) review would, as a 

practical matter, be foreclosed if an immediate appeal were 

10 While the Supreme Court in Dhillon acknowledged 

“principles of finality under federal and California law may not 

be coextensive,” the Court stated federal authority governing 

when a district court order remanding a matter to an agency is 

appealable “reinforce[d]” the Court’s “conclusion that practical 

unreviewability is a relevant consideration.” (Dhillon, supra, 

2 Cal.5th at p. 1118, fn. 4.) So, too, does federal authority 

reinforce our conclusion the judgment granting Jackson’s petition 

for writ of administrative mandate in part is not a final 

appealable judgment. 
17

unavailable.’” (Alsea Valley Alliance, at p. 1184; see Lakes Pilots 

Assn., at p. 624; Chugach, at p. 457.) 

As one federal court explained, “The third requirement” of 

the exception—that the decision is not susceptible of appeal from 

a final judgment—“is met when ‘the agency to which the case is 

remanded seeks to appeal and it would have no opportunity to 

appeal after the proceedings on remand.’” (Lakes Pilots Assn.,

supra, 359 F.3d at p. 625; see Alsea Valley Alliance v. Department 

of Commerce, supra, 358 F.3d at p. 1184 [“In previous cases, the 

remand orders we have recognized as satisfying this requirement 

have been uniform in one respect: all were challenged on appeal 

by an administrative agency.”].) “The principle is not normally 

available,” however, “to the agency’s adversary.” (Lakes Pilots 

Assn., at p. 625.) “This is no mere coincidence. Rather, it 

underscores that” in most cases “only agencies compelled to 

refashion their own rules face the unique prospect of being 

deprived of review altogether.” (Alsea Valley Alliance, at 

p. 1184.) That was essentially the situation in Dhillon.

The party opposing the agency’s action, on the other hand, 

“will still be aggrieved by the outcome (assuming that the 

[agency] doesn’t spontaneously change its position . . .) and thus 

will be able again to seek judicial review, including review in the 

court of appeals, raising not only new issues but all those on 

which it got no satisfaction in its original challenge.” (Lakes 

Pilots Assn., supra, 359 F.3d at p. 625; see C.W. v. Denver County 

School District No. 1 (10th Cir. 2021) 994 F.3d 1215, 1222 

[“a private litigant’s objections” to a district court’s remand order 

“are usually ‘reviewable upon conclusion of the remand 

proceedings’”].) That is the situation here, as it was in Kumar, 

supra, 218 Cal.Ap.3d 1050. (See also C.W., at p. 1218 
18

[district court order remanding for a school board to determine 

the relief due to a student under the Individuals with Disabilities 

Education Act was not a final order]; Farr v. Heckler 

(11th Cir. 1984) 729 F.2d 1426, 1427 [district court order 

reversing a denial of social security disability benefits to a 

claimant and remanding to the Secretary of Health and Human 

Services for further consideration of the claimant’s ability to work 

was not a final order because, “[d]epending on the . . .

determination, there may be another appeal to the district court 

and subsequently to [the appellate] court”].)

Finally, the policies underlying the one final judgment rule 

support the conclusion the judgment granting Jackson’s petition 

for writ of administrative mandate in part is not appealable. 

“‘“The theory [behind the one final judgment rule] is that 

piecemeal disposition and multiple appeals in a single action 

would be oppressive and costly, and that a review of intermediate 

rulings should await the final disposition of the case.”’” (In re 

Baycol Cases I & II, supra, 51 Cal.4th at p. 756; see Allen v. 

San Diego Convention Center Corp., Inc. (2022) 86 Cal.App.5th 

589, 595.) For us to consider in this appeal the issues Jackson

raises would invite the type of burdensome, piecemeal disposition 

of the disciplinary proceeding and raise the possibility of multiple 

appeals the one final judgment rule is intended to avoid. Indeed, 

because the trial court set aside the disciplinary penalty and

directed the Board to reconsider the appropriate penalty, the 

circumstances are similar to where “a trial is bifurcated and first 

proceeds on the issue of liability.” (Walton v. Magno (1994) 

25 Cal.App.4th 1237, 1240.) In such cases, “no appeal is allowed 

until both the liability and damage phases of the trial have been 

completed.” (Ibid.; see Baker v. Castaldi (2015) 235 Cal.App.4th 
19

218, 223 [judgment in favor of the plaintiff and awarding 

compensatory damages was not a final appealable judgment 

where punitive damages remained to be tried].)

Similarly, the policies underlying the exhaustion of 

administrative remedies doctrine support treating the judgment 

here as nonfinal. Like the one final judgment rule, the

exhaustion doctrine is, in part, “grounded on policy concerns 

related to . . . judicial efficiency.” (Plantier v. Ramona Municipal 

Water Dist., supra, 7 Cal.5th at p. 383; see Lafayette Bollinger 

Development LLC v. Town of Moraga (2023) 93 Cal.App.5th 752, 

770.) “[T]he doctrine allows an administrative agency to provide 

relief without requiring resort to costly litigation.” (Plantier, at 

p. 383; see Hill RHF Housing Partners, L.P v. City of Los Angeles 

(2021) 12 Cal.5th 458, 478 [the exhaustion doctrine can “mitigate 

damages, [and] relieve burdens that might otherwise be imposed 

on the court system”].) “Even when an administrative remedy 

does not resolve all issues or provide complete relief, it still may 

reduce the scope of litigation.” (Plantier, at p. 383; see KCSFV I, 

LLC v. Florin County Water Dist. (2021) 64 Cal.App.5th 1015, 

1035.) 

Because the superior court has remanded the matter for 

the Board to reconsider certain issues, the Board’s decision on 

remand may reduce the scope of the litigation. Until the Board 

decides there was no violation of Jackson’s Skelly rights or 

declines to award him back pay (if the Board reaches either of 

those conclusions), review of those issues is premature. 

Similarly, until the Board imposes a new disciplinary penalty (if 

any) on Jackson, appellate review of Jackson’s challenges to the 

findings on counts 2, 3, and 4 is also premature. “Any 

determination of merits would, therefore, be an advisory opinion”
20

(Morgan v. Ygrene Energy Fund, Inc. (2022) 84 Cal.App.5th 1002, 

1018), and “a court should avoid advisory opinions involving 

hypothetical facts” (Benitez v. North Coast Women’s Care Medical 

Group, Inc. (2003) 106 Cal.App.4th 978, 991; see Neary v. Regents 

of University of California (1992) 3 Cal.4th 273, 284 [“The wellestablished rule is that we should avoid advisory opinions.”]).

B. We Decline To Treat Jackson’s Appeal as a Petition 

for Writ of Mandate

Jackson asks that, if we conclude the judgment is not 

appealable, we treat his appeal as a petition for writ of mandate.

“‘An appellate court has discretion to treat a purported appeal 

from a nonappealable order as a petition for writ of mandate, but 

that power should be exercised only in unusual circumstances.’” 

(Williams v. Impax Laboratories, Inc. (2019) 41 Cal.App.5th 1060, 

1071; see Olson v. Cory (1983) 35 Cal.3d 390, 401; H.D. Arnaiz, 

Ltd. v. County of San Joaquin (2002) 96 Cal.App.4th 1357, 1366-

1367.)

Jackson asserts “the case presents issues of substantial and 

continuing public interest.” That is not true here. We may 

review a nonappealable interlocutory order by writ of mandate 

where “‘the issues presented are of great public importance and 

must be resolved promptly . . . .’” (Litmon v. Superior Court

(2004) 123 Cal.App.4th 1156, 1166; see Powers v. City of 

Richmond (1995) 10 Cal.4th 85, 113; Hornung v. Superior Court 

(2000) 81 Cal.App.4th 1095, 1098.) Jackson, however, does not 

identify any issues of great public importance or explain why we 

must resolve those issues promptly. To the contrary, Jackson’s

appeal involves a unique factual scenario where his employer 

disciplined him for conduct that occurred during a brief period 
21

while he was at work and reporting for duty, but retroactively

granted him sick leave that covered the day of the incident in 

question. While Jackson cites various provisions of the FMLA 

and invokes his right to due process, he does not explain why the 

public has any special interest in the application of either legal 

principle to this case.

Jackson also argues the appeal “presents an issue of first 

impression, the issue has been thoroughly briefed and our 

determination is purely one of law.” While reviewing courts will 

occasionally exercise their discretion to treat an appeal as a writ 

petition “to review questions of first impression,” they generally 

do so where the question is “of general importance to the trial 

courts and to the profession” (Pacific Tel. & Tel. Co. v. Superior 

Court (1970) 2 Cal.3d 161, 169; see Anderson v. Superior Court 

(1989) 213 Cal.App.3d 1321, 1328) or where “review by writ is the 

statutorily prescribed mode of review” (Zabetian v. Medical 

Board (2000) 80 Cal.App.4th 462, 466). Neither exception applies 

here. Moreover, Jackson’s appeal does not raise purely legal 

issues. Jackson challenges the findings on the counts asserted 

against him, findings we would review for substantial evidence. 

(See Fukuda v. City of Angels (1999) 20 Cal.4th 805, 825; Cate v. 

State Personnel Bd. (2012) 204 Cal.App.4th 270, 281.) 

Finally, Jackson contends his appeal involves a controversy 

that is “capable of repetition and yet evade[s] review.” Jackson 

does not explain why this appeal involves a controversy capable 

of repetition. And as discussed, the issues he raises in this 

appeal will not evade review.
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DISPOSITION

The appeal is dismissed.

SEGAL, Acting P. J.

We concur:

FEUER, J.

MARTINEZ, J.