Filed 9/12/17 LaPorta v. State Personnel Board CA3

NOT TO BE PUBLISHED

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Sacramento)

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Real party in interest, the California Department of Corrections and Rehabilitation (CDCR) purports to appeal from a judgment overturning a decision of the State Personnel Board (SPB) and remanding the matter for reconsideration. In remanding the matter, the trial court expressly noted nothing in the judgment “shall limit the discretion legally vested in [the SPB].” Because the judgment contemplates further administrative proceedings, it is not a final determination of the issues and is therefore not appealable. Accordingly, we dismiss the appeal.

BACKGROUND

This is a judgment roll appeal in which the limited record indicates respondent Lisa LaPorta worked as a parole agent for CDCR. After LaPorta’s AR-15 rifle discharged during a foot pursuit of a parolee-at-large, CDCR imposed a one-day suspension without pay for negligence. LaPorta appealed her suspension to the SPB. CDCR relied on a presumption of negligence after presenting evidence only that (1) LaPorta was in possession of the rifle when it fired, and (2) subsequent inspections revealed no defect in the firearm. The SPB upheld the suspension, and LaPorta filed a petition for writ of administrative mandamus in the superior court. LaPorta argued the SPB erred in accepting the presumption of negligence in the absence of evidence of negligence and in disregarding her evidence in rebuttal to the presumption. CDCR opposed the writ petition.

The superior court granted the petition for administrative mandamus “remanding the proceedings to [the SPB]” in order to “reconsider its action in light of this Court’s decision and to take any further action specially enjoined on it by law. Nothing in this judgment or in that writ shall limit the discretion legally vested in [the SPB].” (Italics added.) From the judgment granting the writ and remanding the matter to the SPB, CDCR filed a notice of appeal.

DISCUSSION

“The existence of an appealable judgment is a jurisdictional prerequisite to an appeal.” (Jennings v. Marralle (1994) 8 Cal.4th 121, 126–127.) Whenever doubt exists regarding the appealability of a judgment or order, this court must consider the issue on its own initiative. (Ibid.) Here, CDCR purports to appeal from a judgment that remands the matter to the SPB for reconsideration.

After the completion of briefing, the California Supreme Court issued its decision in Dhillon v. John Muir Health (2017) 2 Cal.5th 1109 (Dhillon). Dhillon involved an appeal from a superior court order that partially granted a petition for writ of administrative mandamus and remanded the matter for further proceedings before the administrative body. (Id. at p. 1112.) The Dhillon court held the order was appealable even though it involved a remand to the administrative body. (Ibid.) We invited the parties to submit supplemental briefing regarding the application of Dhillon to the trial court order being appealed in this case. We have received and considered the parties’ supplemental briefing.[1] Under the guidance of Dhillon, we conclude CDCR has appealed from a nonappealable order.

Dhillon involved a thoracic surgeon who had clinical privileges with two hospitals. (2 Cal.5th at p. 1112.) One of the surgeon’s colleagues accused him of being verbally abusive and physically aggressive toward her. (Ibid.) The hospitals convened a joint ad hoc committee that determined neither the surgeon nor his colleague had “behaved in a professional manner.” (Ibid.) The joint ad hoc committee “recommended that the two doctors either meet with a mediator to resolve their differences or attend an anger management program.” (Ibid.) This recommendation was adopted by the joint medical executive committee for both hospitals. (Ibid.) The surgeon, however, refused to attend an anger management class. When the hospitals informed the surgeon he would temporarily lose his clinical privileges if he did not attend the class within one month, the surgeon requested a hearing before the hospitals’ judicial review committee. (Id. at p. 29.) The hospitals responded that the surgeon was not entitled to such a hearing. (Ibid.)

The surgeon in Dhillon then sought administrative mandamus in the superior court in the form of an order: requiring the hospitals to provide a hearing before the judicial review committee and vacate the imposition of discipline, declare the hospitals’ bylaws violated due process, and authorize a lawsuit against the hospital for damages. (2 Cal.5th at pp. 1112-1113.) The superior court granted the writ petition in part by ordering the hospitals to grant the surgeon a hearing before the judicial review committee or other appropriate body. (Id. at p. 1113.) From the superior court’s partial granting of the writ of administrative mandamus, the hospitals appealed and the Court of Appeal dismissed for lack of jurisdiction. (Id. at p. 1113.) The Supreme Court granted review. (Id. at p. 1114.)

The Dhillon court concluded the trial court’s order was appealable even though itonly partially granted administrative mandamus. (2 Cal.5th at p. 1112.) The Supreme Court declined to impose a bright line rule regarding appealability of orders only partiallygranting writs of administrative mandate. Instead, the Dhillon court noted that, “[a]s 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 isfinal, but where anything further in the nature of judicial action on the part of the courtis essential to a final determination of the rights of the parties, the decree is interlocutory.’ ” (Id. at p. 1115, quoting Griset v. Fair Political Practices Com. (2001) 25 Cal.4th 688, 698.)

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.’ ” ’ ” (Dhillon, supra, 2 Cal.5th at p. 1115, quoting Sullivan v. Delta Air Lines, Inc. (1997) 15 Cal.4th 288, 304.) The Dhillon court concluded the trial court’s order was final and appealable because the order granted or denied each of the surgeon’s claims. (Id. at p. 1116.) The Supreme Court reasoned that, “as a formal matter, once the trial court issued the writ, nothing remained to be done in that court; no issue was now 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, quoting Griset, supra, 25 Cal.4th at p. 698.) The Dhillon court further reasoned that if the hospitals did not have a right of immediate appeal, the trial court’s order would be capable of evading review. (Ibid.) If the court-ordered administrative proceedings were “again ultimately resolved adversely to [the surgeon], [the hospitals] would have no basis for seeking review of the decision.” (Id. at pp. 1117–1118.)

In contrast to the situation presented in Dhillon, supra, 2 Cal.5th 1109, the trial court’s order in this case does not resolve matters so that nothing remains to be done except for future consideration of the fact of compliance or noncompliance. Here, the trial court’s order expressly authorized the SPB “to take any further action specially enjoined on it by law.” The trial court reiterated that “nothing” in the order “shall limit the discretion legally vested” in the SPB. Consequently, the question of compliance is not yet ripe because the administrative body can still take any action on remand. The trial court’s redundant statement that the SPB may take any further action cements the interlocutory nature of the appealed order. Because the SPB may reconsider its facts, conclusions, and the severity of the penalty (if any), this case is properly remanded to the SPB rather than being prematurely considered on appeal.

This court has discretion to treat the appeal as a petition for writ of mandamus in appropriate cases. (Hall v. Superior Court (2016) 3 Cal.App.5th 792, 797.) The availability of a writ of mandamus generally requires a petitioner to show extraordinary relief is necessary from this court even before the administrative process is complete.

“ ‘Administrative proceedings should be completed before the issuance of a judicial writ. An exception, of course, appears when the administrative board is without jurisdiction.’ ([McPheeters v. Board of Medical Examiners (1948) 82 Cal.App.2d 709,] 717; see, e. g., Long Island Rail Road Company v. United States (E.D.N.Y. 1961) 193 F.Supp. 795, 797-800.) Another exception exists where the administrative agency has made it clear it would be futile to pursue the administrative process to conclusion. (Huntington Beach Police Officers' Assn. v. City of Huntington Beach (1976) 58 Cal.App.3d 492, 499.) A still further well-recognized exception lies where irreparable harm will result if judicial intervention is withheld until a final administrative decision is rendered. (See United States v. Superior Court (1941) 19 Cal.2d 189, 196-197 . . . .)” (Alta Loma School Dist. v. San Bernardino County Com. On School Dist. Reorganization (1981) 124 Cal.App.3d 542, 555, fn. omitted.)

Although CDCR requests that its defective appeal be treated as a petition for writ of mandate, CDCR makes no attempt to demonstrate the administrative agency lacks jurisdiction, made it clear the process is futile, or show it will suffer irreparable harm as a result of the process. CDCR’s conclusory assertion that this would be “an appropriate case” to treat as a writ petition because CDCR believes the administrative law judge did not commit evidentiary error does not satisfy any of the factors warranting extraordinary relief before completion of the administrative process.

DISPOSITION

The appeal is dismissed. Lisa LaPorta shall recover her costs on appeal. (Cal. Rules of Court, rule 8.278(a)(2).)

/s/

HOCH, J.

We concur:

/s/

MURRAY, Acting P.J.

/s/

RENNER, J.