The opinion
Filed 2/8/24
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
NATHAN JACKSON, B328414
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. 22STCP01670)
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.
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.
_________________
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
2
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.
3
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
4
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.
5
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”].)
6
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.
7
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.)
8
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.
9
“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
10
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.)
11
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”];
12
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
13
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,
14
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.
15
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.
16
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
17
[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
18
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”
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(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 well-
established 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
20
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.
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