Filed 7/8/16
                             CERTIFIED FOR PUBLICATION


                COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                      DIVISION ONE

                                   STATE OF CALIFORNIA



CITY OF CARLSBAD,                                    D070253

        Plaintiff and Appellant,

        v.                                           (San Diego County
                                                     Super. Ct. No. 37-2015-00031910-
ED SCHOLTZ,                                          CU-WM-NC)

        Defendant and Respondent;

STEVEN SEAPKER,

        Real Party in Interest and Respondent.


THE COURT:

        This case presents the question of whether a judgment denying a petition for writ

of mandate challenging an evidentiary ruling of a hearing officer is an appealable final

judgment or a nonappealable interlocutory judgment. We publish this order to clarify a

judgment denying a petition for writ of mandate challenging an evidentiary ruling of a

hearing officer is a nonappealable interlocutory judgment where, as here, the superior

court did not deny the petition on the merits, the administrative proceedings before the


*       McConnell, P. J., Benke, J., and Irion, J.
hearing officer have not concluded, the hearing officer is not the final administrative

decision maker, and the hearing officer's decision did not a create a substantial risk

confidential information would be publicly disclosed. We, therefore, dismiss the appeal

and deny a related motion for stay as moot.

                                     BACKGROUND

       Steven Seapker is administratively appealing a decision by the City of Carlsbad

(City) to discharge him from his position as a police officer. His defense to the discharge

is that the City is penalizing him more harshly than it has penalized other similarly

situated police officers. This defense requires some inquiry into the City's discipline of

other police officers, which implicates the discovery procedures discussed in Pitchess v.

Superior Court (1974) 11 Cal.3d 531 (Pitchess). (See, e.g., Riverside County Sheriff's

Dept. v. Stiglitz (2014) 60 Cal.4th 624, 629; see also Pen. Code, §§ 832.7, 832.8; Evid.

Code, §§ 1043-1045.)

       Seapker's administrative appeal has two stages: (1) a hearing before a hearing

officer who will submit nonbinding findings and recommendations to the city council;

and (2) the review of the findings and recommendation and a final decision by the city

council. Seapker's administrative appeal is in the first stage and the hearing before the

hearing officer has thus far occurred on nine intermittent days between December 2014

and July 2015.

       Two separate Pitchess issues have arisen since the commencement of the hearing.

The first Pitchess issue arose when Seapker filed a Pitchess motion seeking discovery of

documents related to personnel investigations and disciplinary actions of other City

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police officers during the preceding five years. The hearing officer granted the motion,

conducted an in camera review of the personnel files of two officers, referred to by the

parties as Officer H and Officer W, and ultimately ordered the disclosure of three pages

from the final report of an internal affairs investigation. The hearing officer also ruled

Seapker could call the two officers as witnesses.

       The second Pitchess issue arose when the hearing officer directed a police

sergeant to respond to a cross-examination question about whether an officer, referred to

by the parties as Officer K, had been reprimanded for an incident in which he and

Seapker were both involved and for which Seapker received a written reprimand in

November 2012. The City based its decision to discharge Seapker in part on this

reprimand.

       The City objected to the questioning on the ground Officer K's personnel

information was confidential and not subject to disclosure absent compliance with the

Pitchess discovery procedures. However, Seapker's counsel contends he could not bring

a Pitchess motion in this instance because he did not have a good faith belief a record of a

reprimand existed. To the contrary and consistent with Seapker's disparate penalty

defense, Seapker's counsel believed and was attempting to prove a reprimand did not

exist. According to Seapker's counsel's offer of proof, Officer K, whom Seapker's

counsel represents in unrelated matters, is prepared to testify he had engaged in the same

activity as Seapker, but was not disciplined in any manner.

       The hearing officer overruled the City's objection and ordered the police sergeant

to answer the cross-examination question. A police lieutenant attending the hearing

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countermanded the hearing officer's order and directed the police sergeant not to answer

the question. The police sergeant followed the police lieutenant's directive and declined

to answer the question.

       Seapker then moved to exclude all testimony and evidence related to Seapker's

November 2102 written reprimand. The hearing officer granted the motion, struck all

testimony and evidence related to the reprimand from the record, and prohibited the City

from presenting any further testimony and evidence related to the reprimand.

       The City filed a petition with the superior court seeking a writ of mandate: (1)

excluding Officer W's and Officer H's testimony as irrelevant; (2) compelling the hearing

officer to comply with Pitchess as to Officer K; and (3) reversing the evidentiary

sanctions for the police sergeant's refusal to comply with the hearing officer's order to

answer the cross-examination question about Officer K.

       The superior court denied the City's writ petition "on the merits," but without

prejudice, primarily on the ground the City had an adequate legal remedy via a petition

for writ of administrative mandate at the conclusion of the administrative appeal. The

superior court considered the matter to be an evidentiary issue and questioned whether

the City was entitled to bring a petition for writ of mandate every time the hearing officer

made an unfavorable evidentiary ruling. The court also questioned whether the hearing

officer had a clear, present, ministerial duty to conduct a Pitchess review of a file where

there was common knowledge the file contained no disciplinary action. The court

subsequently entered a judgment stating without elaboration that it denied the petition

"on the merits."

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                                        DISCUSSION

                                               A

       The City appealed the judgment and filed a motion requesting this court stay

related matters pending before the superior court and the hearing officer until we decide

the outcome of the appeal. Seapker opposed the motion, asserting, among other points,

the judgment is not appealable because it is interlocutory. We requested the parties

submit letter briefs addressing this point further.

       The City contends the judgment is final and appealable because the judgment

entirely disposed of the City's writ petition, there is nothing further substantively for the

court to decide, there are no other matters pending before the parties in the superior court,

and any future petition for administrative mandate would involve the City, not the

hearing officer, and present the separate and independent issue of the validity of the

City's final decision on Seapker's discharge. If the judgment is not appealable, the City

requests this court exercise its discretion to treat the appeal as a petition for writ of

mandate.

       Seapker contends the judgment is interlocutory and not appealable because there

remain issues between the parties to be adjudicated, specifically Seapker's administrative

appeal. The adjudication of Seapker's administrative appeal may obviate the need for this

appeal and proceeding with this appeal would needlessly delay matters. In addition, the

City is not without a remedy as it can raise its Pitchess-related issues in a petition for writ

of administrative mandate at the conclusion of the administrative appeal.



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                                               B

       "The right to appeal is wholly statutory." (Dana Point Safe Harbor Collective v.

Superior Court (2010) 51 Cal.4th 1, 5 (Dana Point); Griset v. Fair Political Practices

Com. (2001) 25 Cal.4th 688, 696.) "At one time, it was thought to be settled law that an

order denying a writ of mandate was an appealable order unless the trial court

contemplated further orders or action on the petition. [Citations.] However, recent

California Supreme Court cases have disapproved this line of authority." (Bettencourt v.

City and County of San Francisco (2007) 146 Cal.App.4th 1090, 1097, citing Griset,

supra, 25 Cal.4th at pp. 697-699, and other earlier cases.) Rather, the superior court's

judgment on the City's writ petition is appealable only if the judgment is not an

interlocutory judgment. (Code Civ. Proc., § 904.1, subd. (a)(1) ["An appeal . . . may be

taken from . . . [¶] . . . a judgment, except (A) an interlocutory judgment . . . "].)

       "A judgment is the final determination of the rights of the parties (Code. Civ.

Proc., § 577) ' " '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.' " ' [Citations.] ' "It is not the form of the decree but the substance and effect

of the adjudication which is determinative. As a general test, which must be adapted to

the particular circumstances of the individual case, it may be said 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



                                               6
the parties, the decree is interlocutory." ' [Citations.]" (Dana Point, supra, 51 Cal.4th at

p. 5.)

         Although the superior court referred to its judgment as a judgment "on the merits,"

the superior court did not, in fact, decide the merits of the writ petition (i.e., whether the

hearing officer correctly determined Officer H's and Officer W's personnel information

was relevant to Seapker's administrative appeal and whether the hearing officer violated

the Pitchess discovery procedures by ordering the police sergeant to answer a cross-

examination question about whether the City reprimanded Officer K). The superior court

effectively summarily denied the writ petition because the superior court determined the

City had an adequate appellate remedy via a petition for administrative mandate at the

conclusion of the administrative appeal. (See Code Civ. Proc., § 1086.) The superior

court did not issue a final decree with which the parties may comply or not comply.

         The procedural posture of this case further supports our conclusion the judgment is

not final. Seapker's administrative appeal remains pending and its adjudication is

essential to a final determination of the parties' rights (i.e., whether the City properly

discharged Seapker). Moreover, the hearing before the hearing officer is not the final

step in the administrative appeal. The hearing officer is tasked only with making findings

and recommendations to the city council. The city council must then review the findings

and recommendations and may affirm, revoke, or modify them. If this appeal were to go

forward, this court would not be reviewing the decision of the superior court, or even a

decision of the final administrative decision maker. It would be reviewing a decision of a

hearing officer who serves a purely advisory role.

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       Notwithstanding the absence of a final judgment, we have the discretion to treat

this appeal as a writ petition. (See Olson v. Cory (1983) 35 Cal.3d 390, 400-401.)

However, the Supreme Court has advised against exercising this discretion except under

unusual circumstances. (Id. at p. 401.) The City has not persuaded us such

circumstances exist here.

       As the superior court noted, the City has an adequate remedy for any erroneous

evidentiary rulings via a petition for writ of administrative mandate at the conclusion of

the administrative appeal. Further, to the extent the hearing officer erred by failing to

comply with the Pitchess discovery procedures as to Officer K, the City also has not

established the prospect of irreparable harm. The administrative hearing is closed to the

public and, according to Seapker's counsel's offer of proof, there is no applicable

reprimand in Officer K's personnel file and Officer K is willing to so testify. Therefore,

the hearing officer's ruling requiring the police sergeant to answer Seapker's counsel's

cross-examination question presented no substantial threat of the unauthorized disclosure

of confidential information.

                                      DISPOSITION

       The City's appeal is dismissed. The City's motion for stay is denied as moot.




                                                                        McCONNELL, P. J.

Copies to: All parties



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