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

Plaintiff and Respondent,

v.

LOS ANGELES COUNTY CIVIL 

SERVICE COMMISSION,

Defendant;

GREGORY MERRITT,

Real Party in Interest and 

Appellant.

B275974

(Los Angeles County

Super. Ct. No. BS156979)

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.

_________________________
2

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.
3

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).
4

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.
5

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.
6

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 
7

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 Procedure4

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.
8

“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.)
9

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.
10

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 
11

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 
12

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.
13

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.
14

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.)
15

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 
16

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.
17

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]).
18

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.
19

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.
20

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.