Filed 4/12/18
                CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                SECOND APPELLATE DISTRICT

                        DIVISION THREE

COUNTY OF LOS ANGELES                    B275974

       Plaintiff and Respondent,         (Los Angeles County
                                         Super. Ct. No. BS156979)
       v.

LOS ANGELES COUNTY CIVIL
SERVICE COMMISSION,

       Defendant;

GREGORY MERRITT,

     Real Party in Interest and
Appellant.


     PURPORTED APPEAL from an order of the Superior
Court of Los Angeles County, James C. Chalfant, Judge.
Dismissed.
     Rothner, Segall & Greenstone, Glenn Rothner and
Jonathan Cohen for Real Party in Interest and Appellant.
     Gutierrez, Preciado & House, Calvin House; Catherine
Mason Mathers, County Counsel, for Plaintiff and Respondent.
     No appearance for Defendant and Respondent.
                    _________________________
               INTRODUCTION AND SUMMARY
      The County of Los Angeles fired Gregory Merritt, a
supervisor in the County’s Department of Children and Family
Services for (1) failing to adequately supervise a social worker,
Patricia Clement, and (2) approving Clement’s unjustifiable
closure of a case of suspected child abuse without first consulting
the Department’s records, as required by Department policy.
Those records indicated the child – eight-year-old Gabriel
Fernandez – was at risk of further abuse and that the file
unquestionably should not have been closed. In May 2013, less
than two months after Merritt approved closing the file, thereby
ending the Department’s efforts to protect the child, Gabriel’s
mother and her boyfriend beat the child to death.1
      Merritt appealed his discharge to the Civil Service
Commission. After taking evidence, a hearing officer found that
Merritt had been negligent, but set aside the discharge, instead
imposing a 10-day suspension as the only penalty. The County
objected to reinstating Merritt. In response, and without reading
the record or receiving any further evidence, the Commission
adopted the hearing officer’s negligence findings, but substituted
a 30-day suspension without back pay as the penalty.
      The County filed a petition for writ of administrative
mandate, asking the Superior Court to overturn the
Commission’s decision requiring reinstatement and to instead
uphold its firing of Merritt. Merritt filed a separate petition for
writ of traditional mandate seeking an award of back pay. The
Superior Court consolidated the two petitions.

1      These events resulted in substantial media attention and
criticism of the Department. Like the trial court, we use the full
names of those involved because they have become part of the
public domain, and because Gabriel is the victim of homicide.



                                 2
      On May 5, 2016, the Superior Court, having concluded the
Commission set forth insufficient findings to “bridge the analytic
gap”2 between the evidence of Merritt’s failings and its decision to
impose a 30-day suspension rather than discharge (or any other
possible penalty), partially granted the County’s petition, to this
extent: it remanded the matter to the Commission with
instructions to set aside its decision, make appropriate findings,
reconsider the penalty based on those findings, and issue a new
decision that includes findings explaining its rationale. The court
explicitly stated its order was interlocutory. It did not require or
foreclose any particular decision by the Commission and left for
future review by that court the core issue of Merritt’s discharge
or reinstatement. The court denied as moot Merritt’s petition for
an award of back pay, with the express understanding that it
could be revived depending on the Commission’s decision. In a
colloquy with the judge, Merritt’s counsel acknowledged that this
interlocutory order would not be subject to appellate review.
Nevertheless, Merritt appealed.
      In the recent case of Dhillon v. John Muir Health,3 our
Supreme Court reiterated the familiar rule that “[i]n general, an
adverse ruling in a judicial proceeding is appealable once the trial
court renders a final judgment,” (id. at p. 1115) and that the
general rule applies equally in administrative mandate
proceedings. (Ibid.) It eschewed a one-size-fits-all rule, however,
for determining whether an order partially granting a petition for


2     Topanga Assn. for a Scenic Community v. County of Los
Angeles (1974) 11 Cal.3d 506, 515, 516; Young v. City of Coronado
(2017) 10 Cal.App.5th 408, 420-422; Farr v. County of Nevada
(2010) 187 Cal.App.4th 669, 686.
3     (2017) 2 Cal.5th 1109 (Dhillon).



                                 3
writ of mandate and remanding the matter to an agency or other
inferior tribunal is a final judgment, and therefore appealable.
Instead, it stated “ ‘ “[a]s a general test, which must be adapted to
the particular circumstances of the individual case, . . . where no
issue is left for future consideration except the fact of compliance
or noncompliance with the terms of the first decree, that decree is
final, but where anything further in the nature of judicial action
on the part of the court is essential to a final determination of the
rights of the parties, the decree is interlocutory.” ’ ” (Ibid.)
Dhillon also recognized, however, that an otherwise nonfinal
order remanding a matter to an administrative agency may be
appealable if the order affects substantial rights and may, as a
practical matter, be unreviewable after resolution of the merits of
the controversy. (Id. at pp. 1117-1118 & fn. 4.)
       Because the May 5, 2016 order from which Merritt
purports to appeal left the key issues raised by the parties for
future resolution by the trial court, and because the propriety of
that order is an issue that could be resolved in any future appeal
from a final judgment, the order is not a final judgment and is
not appealable. Accordingly, we dismiss Merritt’s purported
appeal.
          FACTS AND PROCEDURAL BACKGROUND
       1.     Events leading to Merritt’s discharge.
       Gabriel’s teacher first reported suspected physical abuse of
Gabriel to the Department’s emergency response unit in October
2012. The Department had previously received reports of abuse
or neglect of other children in the home. On December 27, 2012,
Merritt was asked to screen the case for family preservation.
Thereafter, the Department opened a voluntary family
maintenance case plan, signed by the mother on January 29,
2013. The voluntary family maintenance case plan was assigned
to Patricia Clement, a social worker under Merritt’s supervision.



                                 4
       After the mother refused services, Clement recommended
closing Gabriel’s case on March 29, 2013, which Merritt approved
on April 5, 2013. The family’s case was finally closed with
Gabriel’s sibling on April 25, 2013. About a month later, on May
22, 2013, Gabriel’s mother and her boyfriend beat him severely;
he died of his injuries two days later.
       The Department launched an internal affairs investigation
after the child’s death. The investigation revealed, among other
things, that Clement had failed to conduct the required
assessments regarding the safety of Gabriel’s home environment
and his need for mental health services. For example, the case
file and online records showed missed interviews with Gabriel,
bodily injuries to Gabriel, that Gabriel had suicidal ideations and
had allegedly been sexually abused by a relative, and the failure
of the mother to cooperate. These factors should have precluded
closing the case file. Yet, the case was closed.
       Following the investigation, the Department decided to
terminate four social workers, including Clement and Merritt.
The Department discharged Merritt for his negligent supervision
of Clement, citing his failure to ensure Clement: complied with
continuing services case management policies; screened and
assessed Gabriel and his siblings for mental health services;
complied with contact and documentation requirements; properly
investigated and assessed allegations of physical abuse; assessed
Gabriel’s mother’s parental capacity; assessed an emergency
response referral; and thoroughly assessed the appropriateness of
terminating Gabriel’s case. The Department also cited Merritt’s
failure to comply with its standards for supervising children’s
social workers, including Merritt’s failure to review the paper
case file and the Department’s online CWS/CMS case record
system before closing Gabriel’s case.




                                5
      2.    Proceedings before the Commission.
      Merritt appealed the discharge to the Commission and
requested a hearing. The Commission’s hearing officer held an
evidentiary hearing, including two days of testimony, and issued
written findings of fact and conclusions of law. After
summarizing the witnesses’ testimony and documentary
evidence, the hearing officer made the following findings of fact,
among others:
      • Merritt “relied on . . . Patricia Clement, an experienced
         social worker, and she failed to perform her duties to his
         expectations.”
      • “The un-rebutted testimony demonstrates that [Merritt]
         asked Ms. Clement appropriate and necessary questions
         about the case at regular meetings between them.”
      • “Clement misrepresented the circumstances
         surrounding the services she was providing to the minor
         and his family and failed to accurately report said
         circumstances to [Merritt].”
      • “Clement misrepresented facts about the minor and his
         family’s circumstances to [Merritt] when she
         recommended closing the case.”
      • Merritt “could have been more thorough and involved in
         supervising . . . Clement and the case involving this
         minor and his family.”
      • “The evidence on the record is not sufficient to sustain
         the discharge of [Merritt].”
      • “The evidence supports a ten-day suspension.”
      The hearing officer concluded the Department “sustained
the burden of proof that [Merritt] did not provide sufficient
supervision to . . . Patricia Clement,” but did not sustain its
“burden of proof that discharge is the appropriate level of




                                 6
discipline,” and recommended the Commission reduce Merritt’s
discharge to a 10-day suspension.
       The Commission tentatively accepted the hearing officer’s
recommendation to reduce the discharge to a 10-day suspension,
and the County timely filed objections in response. The
Commission sustained the County’s objections in part, rejected
the recommended 10-day suspension, and issued a new decision
reducing the discharge to a 30-day suspension with no back pay.
       3.    Proceedings before the trial court.
       The County then filed a petition for writ of administrative
mandamus under section 1094.5 of the Code of Civil Procedure 4
seeking an order compelling the Commission to set aside its
decision to reduce Merritt’s discharge to a 30-day suspension
without back pay, and directing the Commission to sustain the
Department’s decision to discharge him. Merritt opposed the
petition and filed his own petition for the issuance of a writ of
traditional mandate under section 1085 to require the
Commission to award him back pay. The court ordered the two
petitions consolidated, with “[a]ll further documents . . . ordered
to be filed under County’s Petition as the lead case.”
       A 22-page tentative decision, issued on the morning of the
hearing on the petitions, summarized the trial court’s conclusions
regarding the Commission’s findings as follows:




4    All future statutory references are to the Code of Civil
Procedure unless otherwise noted.



                                 7
      “In sum, the Commission’s findings concerning
Merritt’s general reliance on his social workers without
micro-managing them, and the fact that he relied on
Clement’s misrepresentations, are supported. But the
reasonableness of this reliance was a material issue. There
was no testimony that Merritt was entitled to rely on
Clement’s misrepresentations and not do more. The
Commission failed to make findings concerning
(a) Merritt’s knowledge of Clement’s failings and whether
this meant he should not defer to her management of
Gabriel’s case, (b) Merritt’s duty to ensure that Clement
understood the risk factors, that she complied with her
duties, and that she performed her work properly, (c) his
separate duty to review the online and paper file before
closing the case, and (d) his failures to act based on his own
personal knowledge. The facts concerning these issues
support findings that would undermine the Commission’s
[1] implicit finding that Merritt’s reliance on Clement was
reasonable, and [2] its actual findings that Merritt could
have been more thorough, but the evidence is insufficient to
sustain his discharge.
       “[¶] . . . [¶]
       “The Commission’s legal conclusion that the County
did not prove that discharge was an appropriate penalty
was based on the [implicit] finding that Merritt was
entitled to rely on Clement’s representations, and Merritt’s
lack of prior discipline in his nearly 24-year career. In light
of the court’s finding that the Commission’s findings are
not supported by substantial evidence, the Commission’s
conclusion about discharge is not supported by the
findings.” (Italics added; citations omitted.)




                           8
       The court continued, “the Commission failed to provide any
reasoning or analysis for its imposition of a 30-day suspension
without back pay instead of firing Merritt. That is the crux of this
case. The Commission’s findings do not support a 30-day
suspension, and the Commission must make proper findings and
then reconsider the appropriate penalty.”
       The trial court, however, refused “to bypass the
Commission and sustain the [Department]’s decision to discharge
Merritt,” as the County had advocated. The court reasoned it
could not “conclude that the Commission reasonably can reach
only a result of discharge” based on the facts before it and
without additional findings from the Commission. Thus, the trial
court determined “[i]t [wa]s preferable that the Commission
make appropriate findings on the issues discussed [in its
decision] and reconsider the penalty before any further
evaluation by the court.”
       The trial court’s tentative ruling also called for issuance of
a writ “directing the Commission to set aside its decision, issue
new findings concerning the issues raised [in its decision], and
reconsider the penalty based on those findings.” The court stated,
“In issuing the writ, the court does not intrude on the
Commission’s discretion to conduct a de novo hearing, review the
record independently, or remand to the Hearing Officer for new
findings.”
       At the May 5, 2016 hearing, the trial court made clear it
was not deciding whether the Commission abused its discretion:
“I don’t think [I] need to decide at this time the County’s
argument that the Commission abused its discretion by not
reviewing the record or conducting a de novo hearing.” The court
noted, however, the County was “free to renew that argument,”
should the Commission simply remand the matter to the hearing
officer and again impose a suspension.



                                 9
       Because the trial court remanded the matter to the
Commission, it denied Merritt’s petition for back pay as moot. It
noted, however, the County had conceded “if the Commission’s
decision to suspend Merritt is upheld, the County will owe
Merritt back pay from the date of its decision.”
       The trial court’s tentative ruling also had called for entry of
judgment. At the hearing, however, Merritt’s counsel asked the
court if it “was inclined to grant an interlocutory remand without
surrendering jurisdiction that would preserve all of these issues
before [sic] for a decision after the . . . Commission had made the
further findings that Your Honor wants.” When asked by the
court if an interlocutory versus a final order would make a
difference, Merritt’s counsel responded it would be “a lot cleaner,”
for the matter to return to the court.
       The court confirmed, “you have no appeal right when I
remand; right?” Merritt’s counsel agreed. The court further
explained that if its order was an interlocutory remand, then
“[t]here would be a return after remand to me in this case. . . .
[T]hese back pay issues would remain alive if there is an
interlocutory remand.”
       Directing its comments to Merritt’s counsel, the trial court
concluded, “If you want me to make it interlocutory, I will. You
won’t have an appeal right[], though.” After conferring with
Merritt, his counsel replied, “Your Honor, we would like to
pursue the interlocutory version of the remand so that the fact
finding could be done by the Commission while this Court retains
jurisdiction over the pending and not yet mooted pending
petitions.”
       The trial court then adopted its tentative, “except the
remand is interlocutory and not a final judgment,” and clarified
Merritt’s petition for back pay was currently moot but subject to
reviver. Additionally, the court issued a minute order that



                                 10
granted the County’s petition, but “remand[ed] the matter to the
[C]ommission for further proceedings as identified in the
tentative ruling.” The minute order reiterated the trial court’s
statements during the hearing that “[t]he court’s ruling is an
interlocutory remand to the commission.”
       4.    The purported appeal and related proceedings in this
Court.
       Notwithstanding his counsel’s concession that the May 5
order was interlocutory and nonappealable, on June 30, 2016,
Merritt filed a notice of appeal from that order. A week later,
Merritt filed a separate petition for writ of mandate and request
for immediate stay of the May 5 order. This court granted a
temporary stay pending its determination of Merritt’s petition,
but ultimately denied the petition summarily and lifted the stay
on August 31, 2016.
       During the pendency of this purported appeal, on October
5, 2016, the Commission announced its post-remand decision to
discharge Merritt. On October 11, 2016, Merritt filed a petition
for writ of supersedeas and request for stay of the Commission’s
October 5 decision. The County then filed a motion to dismiss this
appeal on October 13, 2016, to which it attached, inter alia, the
reporter’s transcript of the trial court’s May 5, 2016 hearing.
       On December 8, 2016, this court denied Merritt’s petition
for writ of supersedeas and ruled it would defer deciding the
County’s motion to dismiss until such time as it considered the
purported appeal on its merits.
       On May 30, 2017, the County requested judicial notice of
records reflecting the Commission’s post-remand proceedings and
trial court proceedings held after the Commission’s post-remand
decision, which this court granted. The County also moved to
augment the record with a transcript of the audio recording of the




                               11
Commission’s April 1, 2015 hearing, and we granted that motion
also.
       This court requested the parties respond by letter brief to
the court’s questions concerning the status, and impact, if any, of
the Commission and trial court proceedings on the current
purported appeal. The parties filed a joint response on February
13, 2018, including a request for judicial notice of the
Commission’s post-remand decision and various trial court
records reflecting its proceedings held after the Commission’s
post-remand decision. We now grant that request for judicial
notice.5
       The records attached to the various requests for judicial
notice reflect that Merritt filed a new petition for administrative
mandate under section 1094.5 challenging the Commission’s
post-remand decision (Merritt’s new petition). The trial court
related Merritt’s new petition to the cases consolidated under the
County’s petition and ordered it stayed pending resolution of this
purported appeal. In their joint letter brief, the parties state the
trial court deemed the matter relating to the County’s petition
“ ‘completed’ because it did not envision any further proceedings
on the County’s writ petition,” and the trial court docket reflects
the case status as “ ‘Dismissed.’ ” Nothing in the record presented
to this court, however, indicates that a written dismissal order,
signed by the trial judge, was filed in this action. Thus, the case




5    We have not been asked to – and do not – otherwise
address the Commission’s October 5, 2016 post-remand decision
upholding Merritt’s discharge. That decision was finalized
October 11, 2017.



                                 12
was not dismissed and no appealable final judgment was
entered.6
                           DISCUSSION
       1.    Dhillon v. John Muir Health.
       After this purported appeal was filed, but before the
completion of briefing, the California Supreme Court issued its
decision in Dhillon. In Dhillon, our Supreme Court addressed
whether a trial court’s order on administrative mandamus
remanding the matter for further administrative proceedings is
an appealable order.7 The Supreme Court decidedly did not
undertake to answer “ ‘the broad question whether remands to
administrative agencies are always immediately appealable.’ ”
(Id. at pp. 1116.) Focusing on the specific facts before it, the
Supreme Court concluded a “superior court’s order partially
granting [a surgeon’s] writ petition was an appealable final
judgment.” (Ibid.)
       Dhillon involved a surgeon who had clinical privileges at
two hospitals.8 After he was accused of verbal and physical abuse
toward a colleague, the hospitals investigated and ordered both
doctors to attend anger management classes. (Dhillion, supra,
2 Cal.Aapp.5th at p. 1112.) The surgeon refused to attend the
classes and requested an administrative hearing when he was
told he would lose his clinical privileges at the hospitals if he did
not comply. (Ibid.) The hospitals responded by asserting he was
not entitled to such a hearing. (Ibid.) The surgeon then sought
administrative mandamus in the superior court in the form of an

6    Section 581d; Powell v. County of Orange (2011)
197 Cal.App.4th 1573, 1577-1578.
7     Dhillon, supra, 2 Cal.5th at p. 1112.
8     Dhillon, supra, 2 Cal.5th at p. 1112.



                                 13
order to: compel the hospitals to grant him a hearing and vacate
the imposition of discipline, declare the hospitals’ bylaws (to the
extent they precluded a hearing) violated due process, and
authorize the surgeon to file a lawsuit against the hospitals for
damages. (Id. at pp. 1112-1113.) The trial court granted the writ
petition in part and ordered the hospitals to grant the surgeon a
hearing. (Id. at p. 1113.) The hospitals appealed; the Court of
Appeal dismissed the appeal for lack of jurisdiction; and the
Supreme Court reversed. (Id. at pp. 1113-1114, 1120.)
       As noted above, the Supreme Court recognized the general
rule that “a judgment is final, and therefore appealable, ‘ “ ‘when
it terminates the litigation between the parties on the merits of
the case and leaves nothing to be done but to enforce by execution
what has been determined. ’ ” ’ ”9 As we have said, the Supreme
Court adopted “ ‘ “[a]s a general test” ’ ” for finality, “ ‘ “that
where no issue is left for future consideration except the fact of
compliance or noncompliance with the terms of the first decree,
that decree is final, but where anything further in the nature of
judicial action on the part of the court is essential to a final
determination of the rights of the parties, the decree is
interlocutory.” ’ ” (Dhillon, supra, 2 Cal.5th at p. 1115, quoting
Griset v. Fair Political Practices Com. (2001) 25 Cal.4th 688, 698
(Griset).)10



9     Dhillon, supra, 2 Cal.5th at p.1115, quoting Sullivan v.
Delta Air Lines, Inc. (1997) 15 Cal.4th 288, 304.
10    The Supreme Court also reiterated its “ ‘ “well-established
policy, based upon the remedial character of the right of appeal,
of according that right in doubtful cases ‘when such can be
accomplished without doing violence to applicable rules.’ ” ’
[Citation.]” (Dhillon, supra, 2 Cal.5th at p. 1115.)



                                14
       Applying these principles, the Supreme Court concluded
the trial court’s order was final and appealable because it granted
or denied each of the surgeon’s claims and “did not reserve
jurisdiction to consider any issues.” (Id. at pp. 1116-1117.) Thus,
the Court reasoned, “once the trial court issued the writ, nothing
remained to be done in that court; no issue [was then left for the
court’s ‘ “future consideration except the fact of compliance or
noncompliance with the terms of the first decree.” ’ ” (Dhillon,
supra, 2 Cal.App.5th at p. 1117, quoting Griset, supra, 25 Cal.4th
at p. 698.) The Dhillon court also considered the practicalities,
reasoning, “the trial court’s interpretation of [the hospitals’]
bylaws may effectively evade review” if the hospitals did not have
an immediate right of appeal. (Dhillon, at p. 1117.) As the Court
explained, “[i]f the administrative proceedings [we]re again
ultimately resolved adversely to [the surgeon], [the hospitals]
would have no basis for seeking review of the decision,” leaving
the hospitals unable to challenge the surgeon’s entitlement to a
hearing. (Id. at pp. 1117-1118.)
       2.     The trial court’s order was not a final judgment.
       Considering the particular circumstances of this case as our
Supreme Court has directed, we conclude the trial court’s order
here was not a final judgment.
       First, the form of the order was most certainly
interlocutory. The trial court expressly stated it was interlocutory
and did not enter judgment. At the hearing on the petitions, and
at Merritt’s request, it instead made its order an “interlocutory
remand” so that any return after remand would come to the trial




                                15
court, including any issues of Merritt’s back pay.11 Additionally,
the trial court twice confirmed Merritt’s counsel’s understanding
that Merritt would not have a right to appeal from the order. We
are cognizant, however, that “ ‘ “[i]t is not the form of the decree
but the substance and effect of the adjudication which is
determinative.” ’ ”12 Thus, second, and more important, the
substance and effect of the trial court’s order also was
interlocutory. It was not a final judgment. The order did not
resolve all matters leaving only the consideration of the “fact of
compliance or non compliance.” In contrast to Dhillon, where the
trial court granted or denied all relief requested by the petition,
here, the trial court did not.
       The trial court expressly deferred its decision about
whether the Commission abused its discretion, the very question
posed by the County’s petition. Instead, the trial court directed
the Commission to make additional findings and reconsider the
penalty to be imposed on Merritt based on those additional
findings. The trial court was clear: without additional findings, it
could not “fully evaluate the penalty that was imposed.” Whereas
in Dhillon, the lower court would have needed only to ensure the


11    Merritt contends the court’s continuing jurisdiction over
any revived issues of back pay is irrelevant because the back pay
issues concerned Merritt’s, not the County’s petition. We note,
however, the trial court did not maintain jurisdiction to consider
only the back pay issues. During the May 5, 2016 hearing, the
court and parties made clear “any return” after remand would go
to the trial court. Merritt’s counsel also confirmed Merritt wanted
an interlocutory order “so that the fact finding could be done by
the Commission while [the trial court] retains jurisdiction over
the pending and not yet mooted pending petitions.”
12    Dhillon, supra, 2 Cal.5th at p. 1115.



                                 16
hospitals did in fact provide the surgeon a hearing – the relief the
petition requested – here, the trial court retained jurisdiction to
reconsider the Commission’s new decision, if needed, to
determine whether the Commission’s post-remand findings were
sufficient to support whatever penalty (if any) the Commission
ultimately decided to impose.
       For this reason, as a practical matter, the trial court’s May
5 order would not evade appellate review even though not
immediately appealable.13 Should the trial court uphold the
Commission’s post-remand decision and deny Merritt’s new
petition, Merritt may appeal to this court from that final
judgment and argue the Commission’s original decision issued
before the remand was proper. Until that time, however, the
issue is not yet ripe for review.14




13    See Dhillon, supra, 2 Cal.5th at pp. 1117-1118 & fn. 4; see
also Talmo v. Civil Service Com. (1991) 231 Cal.App.3d 210, 224
(Talmo) (concluding county was not required to immediately
appeal the trial court’s order requiring civil service commission to
set aside its decision to discharge sheriff’s deputy and make new
findings).
14    Cf. Talmo, supra, 231 Cal.App.3d at p. 226 (finding issue of
whether commission abused its discretion “now ripe for appellate
review” [from trial court’s order following civil service
commission’s post-remand decision]).



                                17
       The substance of the court’s order, therefore, was
interlocutory because the court retained the ability to review
anew the Commission’s post-remand decision.15
       Moreover, the trial court made clear its order did not
“intrude on the Commission’s discretion to conduct a de novo
hearing, review the record independently, or remand to the
[h]earing [o]fficer for new findings.” Accordingly, after making
additional findings of fact, the Commission was free to reinstate
its original penalty, craft a new penalty, or sustain the
Department’s original discharge of Merritt.
       Thus, the trial court’s order is distinctly different from that
in Carroll v. Civil Service Commission,16 which Merritt urges this
court to follow. There, the trial court explicitly ruled the firing of
a civil service employee – after taking one dollar from the
employees’ coffee fund – was an abuse of the commission’s
discretion.17 The Court of Appeal held the trial court’s writ of
mandate directing the commission to set aside its order and


15     See Ng. v. State Personnel Bd. (1977) 68 Cal.App.3d 600,
603-604 (finding remand to State Personnel Board to reconsider
its decision an unappealable interlocutory order because “[t]he
pending mandate proceeding vested the court with continuing
jurisdiction to review the personnel board’s final decision
rendered after compliance with the interlocutory order”).
16     (1970) 11 Cal.App.3d 727 (Carroll). The Supreme Court in
Dhillon referenced Carroll as one in a line of cases where the
Court of Appeal had stated “a trial court’s order on
administrative mandamus remanding the matter for further
administrative proceedings is appealable,” but did not resolve
whether the case was correctly decided. (Dhillon, supra, 2 Cal.5th
at p. 1114.)
17    Carroll, supra, 11 Cal.App.3d at pp. 729-730.



                                 18
redetermine a “ ‘fair, just and reasonable’ ” penalty after
reexamining the evidence and record was an appealable
judgment. (Id. at pp. 729-730, 733.)
       In stark contrast to the lower court in Carroll, here the
trial court explicitly declined to find the Commission abused its
discretion. Indeed, the court specifically noted it could not
“conclude that the Commission reasonabl[y] can reach only a
result of discharge,” and instead ordered the Commission to
“make appropriate findings on the issues and reconsider the
penalty before further evaluation of the Court.” The court refused
to order the Commission to sustain Merritt’s discharge – or set it
aside – whereas the lower court in Carroll mandated the
commission reinstate the employee.18
       In other words, the trial court here, “unlike the trial court
in Carroll, . . . did not find [the commission’s decision] an abuse of
discretion; only that it might be an abuse of discretion depending
on the new findings after remand.”19 Accordingly, the trial court’s
order was interlocutory not only in form, but also in substance.
       3.     We decline to treat Merritt’s purported appeal as a
petition for writ of mandate.
       We previously denied summarily Merritt’s motion to stay
the proceedings below, and his petition for a writ of mandate to
set aside the May 5, 2016 order. Although we have discretion to
treat a non-appealable order as a petition for writ of mandate in
the appropriate case,20 we decline to do so here. As we have said,
the issues raised in Merritt’s purported appeal still will be

18    Carroll, supra, 11 Cal.App.3d at p. 731.
19    Talmo, supra, 231 Cal.App.3d at p. 226.
20   City of Los Angeles v. Superior Court (2015)
234 Cal.App.4th 275, 280-281.



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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.



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