Cnty. of L. A. v. L. A. Cnty. Civil Serv. Comm'n

22 Cal.App.5th 174

231 Cal.Rptr.3d 263

COUNTY OF LOS ANGELES, Plaintiff and Respondent,

v.LOS ANGELES COUNTY CIVIL SERVICE COMMISSION, Defendant;

Gregory Merritt, Real Party in Interest and Appellant.

B275974

Court of Appeal, Second District, Division 3, California.

Filed April 12, 2018

Rothner, Segall & Greenstone, Glenn Rothner, Pasadena and Jonathan Cohen for Real Party in Interest and Appellant.

Gutierrez, Preciado & House, Calvin House, Pasadena; Catherine Mason Mathers, County Counsel, for Plaintiff and Respondent.

No appearance for Defendant and Respondent.

CURREY, J.^*

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.

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, 218 Cal.Rptr.3d 119, 394 P.3d 1048 ) 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 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, 218 Cal.Rptr.3d 119, 394 P.3d 1048.)

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.

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.

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 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...