Merritt v. L.A. County Civil Service Commission CA2/3

Filed 6/10/21 Merritt v. L.A. County Civil Service Commission CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion
has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE

GREGORY MERRITT, B303439

Plaintiff and Appellant, (Los Angeles County
Super. Ct. Nos. BS156979
v. BS167381)

LOS ANGELES COUNTY
CIVIL SERVICE
COMMISSION,

Defendant;

COUNTY 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. Affirmed.
Weinberg, Roger & Rosenfeld, David A. Rosenfeld and
Alexander S. Nazarov for Petitioner and Appellant.
No appearance for Defendant.
 Gutierrez, Preciado & House, Calvin House and Baruch Y.
Kreiman for Real Party in Interest and Respondent.
——————————
Petitioner Gregory Merritt, a supervising children’s social
worker with the Los Angeles County Department of Children and
Family Services (the Department), was fired by the County of Los
Angeles (County) in September 2013. The Civil Service
Commission (Commission) issued a final order upholding his
discharge. This appeal is from the trial court’s denial of Merritt’s
petition for administrative mandamus challenging the
Commission’s order.
Merritt does not strongly contest the County’s decision to
discipline him because he admittedly failed to follow the
Department’s policy and a child was murdered as a result.
Rather, he focuses his argument primarily on whether his level of
misconduct justified his discharge, or whether he should have
received, as the hearing officer recommended, a 10-day
suspension, or as the Commission originally ordered, a 30-day
suspension.
We affirm the judgment. Merritt’s argument that the
Commission’s decision violated statutory and constitutional due
process notice requirements fails. Not only did he waive the
argument by failing to raise it in his amended petition for writ of
administrative mandamus, but there is no substantive merit to
it. Similarly, we reject his attempt to downplay and deflect from
his own misconduct by arguing the County is comparatively at
fault because it did not provide him sufficient resources to do his
job. That is not a defense here. Finally, we find substantial
evidence in the administrative record that supports the
Commission’s findings of fact and conclusions of law, and the

2
Commission did not abuse its discretion in concluding that
discharge was the appropriate discipline under all the
circumstances.
BACKGROUND
I.
This is Merritt’s second appeal in this matter. The first
appeal was dismissed by this court because Merritt tried to
appeal from an interlocutory trial court order that remanded the
case to the Commission for further proceedings and findings.
(County of Los Angeles v. Los Angeles County Civil Service Com.
(2018) 22 Cal.App.5th 174.)
Although the first appeal was dismissed, this court’s 2018
opinion provides a comprehensive statement of the
administrative proceedings up to the time when the matter was
remanded to the Commission. Accordingly, we repeat those
portions of that opinion as they relate those relevant facts:
“INTRODUCTION AND SUMMARY
“The County . . . fired Gregory Merritt, a supervisor in
the . . . Department . . . 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 [the]
Department[’s] 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.
“Merritt appealed his discharge to
the . . . Commission . . . . After taking evidence, a hearing officer

3
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
backpay 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 backpay. 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’ 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 backpay, 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

4
interlocutory order would not be subject to appellate review.
Nevertheless, Merritt appealed. [¶] . . . [¶]
“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 . . . 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. Yet, the case was closed.

5
 “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 . . . Clement, an experienced social
worker, and she failed to perform her duties to his expectations.’
“—‘The un-rebutted testimony demonstrates that [Merritt]
asked . . . Clement appropriate and necessary questions about the
case at regular meetings between them.’

6
 “—‘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 [10]-day suspension.’
“The hearing officer concluded the Department ‘sustained
the burden of proof that [Merritt] did not provide sufficient
supervision to . . . 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 backpay.
“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
seeking an order compelling the Commission to set aside its
decision to reduce Merritt’s discharge to a 30-day suspension
without backpay, and directing the Commission to sustain the

7
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 [Code of Civil Procedure] section 1085
to require the Commission to award him backpay. The court
ordered the two petitions consolidated . . . .
“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:
“ ‘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 court continued, ‘the Commission failed to provide any
reasoning or analysis for its imposition of a 30-day suspension
without [backpay] instead of firing Merritt. That is the crux of

8
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 it 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 backpay as moot. It
noted, however, the County had conceded ‘if the Commission’s
decision to suspend Merritt is upheld, the County will owe
Merritt [backpay] from the date of its decision.’ ” (County of Los
Angeles v. Los Angeles County Civil Service Com., supra,
22 Cal.App.5th at pp. 176–182, fn. omitted.)
Merritt appealed the trial court’s decision to grant the
County’s writ petition and remand the matter to the Commission
for further proceedings and findings. We concluded the court’s
order was nonappealable and dismissed the appeal.
II.
In response to the trial court’s remand, the Commission
voted to vacate its original order and read the record. Nine days
later, the Commission transmitted its proposed new decision to
Merritt who filed timely objections to the proposed decision. He
argued that discharge was not an appropriate penalty. “Rather,
he is entitled to progressive discipline.” Merritt asked the
Commission to consider imposing a 10-day suspension as
requested by the hearing officer or reimpose the 30-day
suspension if it determined a harsher penalty was warranted.
On October 17, 2017, the Commission issued its final
decision upholding Merritt’s discharge. It also issued findings of
fact and conclusions of law as part of that decision. As relevant
to this appeal they read as follows:
“FINDINGS OF FACT [¶] . . . [¶]
“5. [Merritt] was . . . Clement’s direct supervisor, and it
was his responsibility to ensure that services provided to minor
Gabriel and his family were appropriate and that . . . Clement

10
complied with all [the] Department[’s] procedural guidelines and
policies.
“6. On April 5, 2013, [Merritt] approved, without comment,
a Safety Assessment . . . which concluded that there were no
threats to the safety of minor Gabriel and that closure of minor
Gabriel’s case was appropriate at that time.
“7. On April 25, 2013, [Merritt] approved the closure [of]
minor Gabriel’s case based on . . . Clement’s recommendation.
Before approving the termination of services, [the]
Department[’s] policy required that [Merritt] review the case file
and online records, including the risk assessment and family
strengths and needs assessment, to ensure that the risk
assessment for the child was low and that [the] Department[’s]
policies and procedures were followed. [Merritt] was required to
document that the review had been conducted and approved the
termination of the case or return it to the social worker as
appropriate. [Merritt] concedes that he did not review the file,
online records or other critical documents before approving, in
writing, the closure of minor Gabriel’s case.
“8. On May 22, 2013, minor Gabriel was severely beaten by
his mother and her boyfriend and died as a result of that beating
on May 24, 2013. [¶] . . . [¶]
“13. When [Merritt] approved the closure of minor
Gabriel’s case, he relied on . . . Clement, an experienced social
worker who he knew had a history of performing below
expectations, as evidenced by his comments on her performance
evaluations.
“14. . . . Clement misrepresented the circumstances
surrounding the services she was providing to minor Gabriel and
his family and failed to accurately report said circumstances to

11
[Merritt]. . . . Clement also misrepresented facts about minor
Gabriel and his family’s circumstances to . . . [Merritt] when she
recommended closing the case.
“15. Notwithstanding . . . Clement’s misrepresentations,
[Merritt] failed in his responsibilities as her supervisor and as
supervisor of minor Gabriel’s case by, among other things:
“(a) failing to ensure that . . . Clement followed [the]
Department[’s] policies and procedures,
“(b) failing to become appropriately involved in
supervising . . . Clement to ensure that she understood the risk
factors and that she performed her duties timely and properly in
the case involving minor Gabriel and his family, particularly in
light of [Merritt]’s knowledge of . . . Clement’s shortcomings as a
CSW III,
“(c) failing to ask . . . Clement appropriate and necessary
questions about the case at regular meetings between them,
“(d) failing to review the case file and online records at any
stage and specifically before approving . . . Clement’s
recommendation to close the case, as required of him by [the]
Department[’s] policies and procedures,
“(e) overlooking, or worse, ignoring information that was
directly e[-]mailed to [Merritt] regarding the mental health of
minor Gabriel and possible sexual abuse in the home.
“16. [Merritt] failing to take appropriate actions even
though [Merritt] was personally aware that minor Gabriel’s
teachers and others had reported continuing abuse and physical
injuries, including the fact that minor Gabriel had been shot with
a BB gun and had a ‘BB’ embedded in his chest, and that minor
Gabriel was reporting suicidal ideations. [Merritt] did not
accurately assess the potential risks to minor Gabriel, did not

12
obtain additional mental health screening for minor Gabriel, did
not assess the continued propriety of the case plan, and failed to
take other actions based on the facts known to him, or which
should have been known to him.
“17. Had [Merritt] reviewed the case file and online records
as required by [the] Department[’s] policy or as merited by the
information known to him, he would have seen a risk level and
pattern of abuse of minor Gabriel that was inconsistent with both
the Safety Assessment and . . . Clement’s recommendations.
[Merritt] conceded, after the fact, that a complete review of the
file indicated that the file should not have been closed and that
there should have been further supervision through court
intervention. [Merritt] also acknowledged some responsibility
stating he could have reviewed . . . Clement’s work more.
“18. A review of minor Gabriel’s case file and online
records would have also revealed, among other things,
that . . . Clement had not properly documented minor Gabriel’s
physical injuries; that . . . Clement failed to assess the mother’s
parenting capacity or to ensure that the mother was participating
in mental health services; that minor Gabriel was missing mental
health appointments; that . . . Clement had not accurately
assessed the risks to [m]inor Gabriel; that . . . Clement had not
made the necessary visits with minor Gabriel and his family,
including private interviews with the children in . . . minor
Gabriel’s home; that . . . Clement had not accurately reported
important information regarding the visits she did make, such as
minor Gabriel’s injuries, reports of sexual abuse as well as other
critical information pertaining to minor Gabriel.
“19. [Merritt] had no prior record of discipline in his
approximately 24 years of employment with the County.

13
 “20. From approximately January to April 2013, [Merritt]
had a significant [workload] during which time he managed
approximately 14 CSW’s in two offices. [Merritt] did not
complain to his supervisor, Kimble Mealancon, that he felt
overworked.
“21. While these mitigating factors (Findings of Fact 19
and 20) were taken into account, they do not
outweigh . . . [Merritt]’s egregious failure to perform his job
properly.
“22. The harm to the public service caused by this case is
significant and has undermined public confidence in the
Department.
“23. [Merritt] displayed a lack of understanding regarding
the seriousness of his behavior and a lack of responsibility for his
conduct by attempting to blame his repeated failure to perform
even his most basic duties on his [workload] and the number of
[the] Department[’s] policies.
“24. Under the circumstances, given [Merritt]’s poor
judgment and failure to exercise proper supervision in this case,
there is a legitimate concern that [Merritt]’s errors in judgment
may be repeated.
“CONCLUSIONS OF LAW
“1. The Department sustained its burden of proving that
the allegations contained in the Department’s September 3, 2013
letter were true and that [Merritt] was negligent in supervising
minor Gabriel’s case.
“2. The Department has sustained the burden of proof that
discharge is the appropriate level [of] discipline after considering
the mitigating factors cited by [Merritt].”

14
 III.
In December 2017, Merritt filed a first amended petition in
the trial court for writ of administrative mandamus. He
challenged the Commission’s October 11, 2017 decision that had
concluded discharge was the appropriate remedy.
Merritt pleaded that the Commission had abused its
discretion because the findings of fact were unsupported by the
record, and the decision “grossly overstated . . . Merritt’s
culpability and gave little to no attention to the mitigating factors
presented at the underlying administrative hearing.” He prayed
that the court order the Commission to set aside its decision and
“direct[ ] the Commission to issue a new decision, which does not
conclude that discharge is the appropriate penalty . . . and
awards him a make whole remedy including back wages and
benefits” as required by law.
In his opening brief in support of his writ petition, Merritt
refined his arguments. He again criticized several of the
Commission’s findings of fact as erroneous and unsupported by
the record; specifically, he focused on those findings that found he
“failed to assess the continued propriety” of the case and that he
“ignored an e[-]mail regarding possible sexual abuse in the
home.” (Initial capitalization and boldface omitted.) He also
criticized the evidentiary basis for the Commission’s conclusions
that he “was negligent in supervising” the case and Clement, and
that he was “negligent in discharging his own duties.” (Initial
capitalization and boldface omitted.) Finally, he insisted that
under general principles of negligence law his “liability for any
negligence is reduced or eliminated by [the Department’s]
comparative fault.” (Initial capitalization and boldface omitted.)

15
 In support of his comparative fault analysis, Merritt
asserted that, in a “massive organization responsible for the
welfare of some 35,000 children, it was only a matter of time until
systemic understaffing resulted in tragic consequences.” He
further asserted the Department breached its duty to maintain
sufficient staffing. “For years, [the Department] has maintained
a regime that systemically overwhelmed [social workers] with
work.” Proof of this breach of the Department’s duty, he argued,
was a newspaper quote in the administrative record from the
mayor of Lancaster, who said: “ ‘We know this system is
broken. . . . We are accountable for what happened to [Gabriel].
How dare we point the finger to the social workers[?] It’s a
disgrace that we point the finger to the people whose own
testimony is we need 1,000 more people and we give them 50.’ ”
Merritt used the comparative fault analysis to argue that
discharge was not an appropriate discipline under all the
circumstances. He should either be absolved of his own
misconduct, or his discipline should be limited to a short
suspension as recommended by the hearing officer or as ordered
by the Commission in its first order. He also complained that the
Commission failed to consider adequately his exemplary 24-year
work record and other mitigating factors, and utilized findings
not supported by the evidence in the record before upholding his
discharge.
Prior to the hearing, the trial court issued a 17-page
tentative ruling that exhaustively went through the history of the
case, the testimony of key witnesses, and the findings and
conclusions of the Commission. The tentative was to deny the
petition. At the hearing, the court focused on the arguments
raised in Merritt’s opening brief, explained the court’s analysis

16
and conclusions at length, and engaged in a robust discussion
with Merritt’s counsel about them.
During argument, Merritt’s counsel additionally
complained that the Commission had changed the focus of its
decision, from a charge against Merritt for negligent supervision
to one that he was also personally negligent. The court
questioned whether Merritt was arguing that he had not been
given adequate notice of the charge for personal negligence. If so,
that argument was waived because it had not been raised in the
papers. Merritt responded that the argument had not been
waived because the claim had been raised in the briefs; it went to
the issue of reliance; that is, whether Merritt was justified in
relying on Clement’s misrepresentations, and that this change
adversely affected how the Commission evaluated the
appropriate discipline.
The court adopted its tentative ruling as its final decision
without any changes or additions. Judgment was entered
denying Merritt’s petition for writ of administrative mandamus,
and Merritt filed a timely appeal.
DISCUSSION
I.
The Due Process Challenge
Merritt argues he was denied basic due process because the
original notice of discharge stated that it was the result of
“negligent supervision” over the case. Yet, when the Commission
issued its proposed final decision, his discharge was also upheld
on the theory of “personal negligence.” He claims he “did not
have notice” of these new allegations or legal theories relied upon
by the Commission “because they were not in the [n]otice of
[d]ischarge. Consequently, the Commission’s upholding of the

17
termination violated statutory notice requirements and the due
process notice requirements under the California Constitution.”
We conclude that Merritt forfeited this claim. He did not
raise it at the first opportunity; that is, when the Commission
issued its proposed decision, and he delayed mentioning it, even
tangentially, until oral argument on the petition. He cannot
raise it now for the first time on appeal.
A. Standard of review
An issue may not be raised for the first time on appeal from
denial of a petition for writ of administrative mandate. (Fox v.
State Personnel Bd. (1996) 49 Cal.App.4th 1034, 1039.) If it was
not raised in the trial court it is deemed waived. Further, the
issue must be raised with the administrative agency at the first
available opportunity or it is deemed waived. (Parmar v. Board
of Equalization (2011) 196 Cal.App.4th 705, 718; Fox, at p. 1039.)
These rules serve the important purpose of permitting the
administrative agency and the court to correct alleged errors,
procedural or substantive, in the first instance. The only time
the waiver doctrine will not be applied is in those rare situations
where the issue “is one of public interest or the due
administration of justice, and involves a pure question of law on
undisputed facts.” (Fox v. State Personnel Bd., supra,
49 Cal.App.4th at p. 1039.)
B. Merritt did not raise the due process issue with the
Commission and thus it was forfeited
Merritt argues the Commission’s postremand final decision
contained the first notice that the theory supporting his
discharge was also based on his personal negligence, not just on
his negligent supervision of Clement. He makes no argument
that he raised this issue with the Commission.

18
 When the Commission issued its proposed decision, Merritt
was offered an opportunity to file objections to the proposed
decision, which he did. Nowhere in those objections did he make
a due process argument. Nothing in the record suggests, nor does
Merritt contend, that he was misled or prevented from alerting
the Commission to any alleged due process violation. That was
the time to raise any fundamental due process violation and
challenge the basis for the decision.
Having elected not to afford the Commission a reasonable
opportunity to reconsider its decision based on this claim, he
waived any such challenge in the trial court, and therefore any
such challenge on that ground here. (See, e.g., Woodland Joint
Unified School Dist. v. Commission on Professional Competence
(1992) 2 Cal.App.4th 1429, 1449 [teacher waived due process
challenge by not raising it first before administrative agency]; see
also Thornbrough v. Western Placer Unified School Dist. (2013)
223 Cal.App.4th 169, 175, fn. 5; Pegues v. Civil Service Com.
(1998) 67 Cal.App.4th 95, 103–104; City of Walnut Creek v.
County of Contra Costa (1980) 101 Cal.App.3d 1012, 1019.)
C. The due process issue was also waived by not being
raised until oral argument on the petition
Merritt contends he did not waive the due process issue in
the trial court because he “raised the facts and legal theories
underlying the argument in the oral proceedings before the trial
court.” The predicate for this contention is that the issue raised
in the trial court, and the issue raised on appeal, are sufficiently
similar that the due process issue was preserved for review. We
are not persuaded. However, we need not address that point.
The argument there was a due process violation was not raised
until after briefing was complete and was thus forfeited.

19
 Merritt filed an amended writ petition after the
Commission issued its postremand decision. Nowhere in that
petition did he make a due process argument, much less one
based on the lack of receipt of proper notice of the charges against
him. The same is true of the opening and reply briefs he filed in
the writ proceeding almost two years after the decision was
rendered. As he forthrightly admits in his opening brief on
appeal, the first time he raised any alleged due process violation
was during oral argument on the petition.
At the hearing, the court interrupted counsel to ask
whether the due process violation argument he was making was
in the briefs. It suggested this argument had been waived.
Counsel replied, “It is not waived because the County didn’t rely
on it for the issue of whether he reasonably relied on
Clement. . . . It goes to this reasonable reliance issue. . . . [¶] If
what Merritt had done was just negligence, just ignored a few
things he shouldn’t have, that would have been negligent
supervision. . . . What they did in their finding was ramp up,
increase dramatically Merritt’s misconduct . . . to say he was far
worse in terms of his conduct th[a]n . . . the Commission had
found before and that’s one reason why the mitigating factors and
reliance are worse. The worse [his] conduct, the less he’s entitled
to rely upon Clement.”
There was no due process argument in Merritt’s briefs on
the petition. It is also clear from the court’s colloquy with counsel
that Merritt’s oral argument did not go to a lack of notice; rather,
it went to the propriety of the Commission’s decision as to the
appropriate discipline. To the extent the argument could be
viewed as alleging a due process violation, we note Merritt waited
to raise it until several years after the Commission issued its

20
final decision. This unexplained delay did not allow the County a
reasonable chance to address the issue in its written briefs. And
it disadvantaged the trial court which had issued a 17-page
tentative ruling based on the petition and the written arguments
of counsel.
The time to have raised the due process argument was in
Merritt’s petition and opening brief on the petition. It would
have afforded the County a fair opportunity to address the issue
in the first instance. It also would have created a reviewable
record. At this point, we have no record other than the colloquy
between Merritt’s counsel and the court, and the point of that
discussion was that the trial court found the issue had been
waived. Moreover, we note the notice of discharge is 30 pages,
single-spaced.
Citing Boyle v. CertainTeed Corp. (2006) 137 Cal.App.4th
645, Merritt asserts the issue was preserved for appellate review
because he was only required to bring the issue to the court’s
attention; he was not obligated to engage in extensive argument
with citations to authority to preserve it. However, the rules
regarding the preservation of an issue for appellate review should
not be confused with the requirement that the issue be raised in
a timely fashion. Merritt did not timely raise the issue as he
should have in the petition and his briefs. The effort to bring it to
the court’s attention during oral argument was simply too late.
It is suggested that due process violations should be
addressed by the court even if untimely. That argument might
have merit if the due process violation prevents a party from
raising the issue. But where, as here, a party volitionally fails to
raise the issue until years after the issue could have first been
raised, the issue is necessarily forfeited. It is also argued that

21
the Commission’s findings violated Los Angeles County Civil
Service Rule 18.02 because the Commission relied on charges not
the notice of discharge. But this argument fails for the same
reason. Merritt waited too long to raise the issue and it was
forfeited.
We recognize that there are certain circumstances where
courts may choose to address an issue rather than deem it
waived. Those rare instances generally involve issues of public
interest or the due administration of justice where the issue is
one of law on undisputed facts. (Fox v. State Personnel Bd.,
supra, 49 Cal.App.4th at p. 1039.) This is not one of those cases.
The issue was waived and there is no reason to revive it.
D. Even if the issue had not been forfeited, the due
process challenge fails on the merits
As discussed, Merritt alleges a due process violation
because he was accused in the notice of discharge with negligent
supervision of Clement, but in the Commission’s decision he was
also found to have been personally negligent in the handling of
the case file. Merritt claims this change in theory was a denial of
basic due process.
In support of his claim, Merritt cites Smith v. State Bd. of
Pharmacy (1995) 37 Cal.App.4th 229. In Smith, a pharmacist
was charged in a disciplinary proceeding with, among other
violations, the excessive furnishing of controlled substances. As
counsel in Smith conceded at oral argument on appeal, “when he
saw he was not able to prove Smith’s personal, volitional
dispensing, he shifted the Board’s case to one of proving Smith
was responsible for the dispensing done by others.” (Id. at
p. 242.) In setting aside that portion of the judgment, the
appellate court found that “the accusation did not afford Smith

22
the basic, appropriate elements of procedural due process, in that
he was misled by the accusation and the prehearing conference
statement into believing he needed to prepare a defense to the
personal dispensing charges.” (Ibid.) The court also noted that
because of the change in theories Smith was “prejudiced by his
inability to present expert testimony on the appropriate standard
of care.” (Id. at p. 244.)
Although there is a superficial similarity between the
cases, Smith is not controlling. Here, the notice of discharge
charged Merritt with negligent supervision. It then detailed in
excruciating detail his repeated failures which resulted in the
death of the child. Among those many enumerated failures,
Merritt violated the Department’s policy and elected not to
personally review the case file before closing it. He admitted that
if he had reviewed the file it would have been apparent that it
should not have been closed.
It is evident from the notice of discharge and the extensive
administrative record that Merritt knew what he was being
charged with. Moreover, he does not suggest what other evidence
he would have presented or how he was prejudiced by the
Commission’s order—other than to suggest it made it easier for
the Commission to justify discharge as the appropriate penalty
here. His only argument is that the addition of personal
negligence, in and of itself, constitutes a procedural due process
violation, and that that alone justifies reversal of the
Commission’s order. We conclude, based on our review of the
entire record, that Merritt was not denied due process under
these facts. All relevant facts were presented at the
administrative hearing and Merritt had full opportunity to
address them.

23
 II.
Specific Civil Tort Principles Do Not Apply
Merritt insists that the Department was a complete
disarray in 2013 when he was handling the underlying case file
and the disciplinary proceeding started. There is evidence in the
administrative record that in 2013 there was serious
understaffing and other systemic problems, and that supervisors,
such as Merritt, often found themselves in zugzwang. At one
point, at least for a short while, Merritt was even tasked with
supervising two separate offices.
Merritt argues he may bring the Department’s systemic
difficulties into this case as a defense, or perhaps to excuse, to his
own mistakes. His argument runs this way: Although he was
charged with negligent supervision and found to have been
personally negligent, the terms “negligence” and “supervising
negligence” are not defined in the California Code of Regulations
relating to social services and other applicable rules, as well as
the notice of discharge. Relying on Carmona v. Division of
Industrial Safety (1975) 13 Cal.3d 303, 310, Merritt argues that
the trial court should have looked to the civil rules on negligence,
and in particular the rules governing comparative negligence, in
order to determine whether the Commission followed the correct
legal standards in concluding Merritt should be disciplined at all,
and whether, if discipline were appropriate, whether his
discharge was the appropriate discipline. He says that because
this involves a question of law, review is de novo. (See Lateef v.
City of Madera (2020) 45 Cal.App.5th 245, 252 [fairness of
administrative proceedings is reviewed de novo].)
Merritt cites no cases that suggest that the rules of
negligence applicable in the civil realm apply to the field of public

24
employee discipline proceedings. The County fails to cite any
cases, either, which address this novel theory. Critically, Merritt
fails to offer any cogent or valid reason why such rules should
apply in public employee discipline cases, other than to say there
is a lack of a definition of negligence in the rules here, which is
not persuasive. Nor can we conceive of any compelling reason
why, especially in this case, the trial court was obligated to look
elsewhere for legal guidance.
The governing rules spelled out specific actions a
supervising social worker is to take. It is undisputed that Merritt
did not follow the rules. He may have seen himself as the ideal
supervisor: He boasted that he did not micro-manage the social
workers under him. However, supervisors who choose not to
closely supervise employees are still obligated to follow the rules
on handling a case file. Those rules do not disappear or somehow
become less insistent if it can be shown that the Department is
not providing adequate staffing and other support to supervisors
and line employees.
Similarly, Merritt seems to suggest that he should be
afforded some grace because Clement lied to him about what she
had done and whether the child was in danger. It is undisputed
that Clement made material misrepresentations and that he
relied on those statements. It is also undisputed that Clement
was known by Merritt to be a marginal employee and that she
required greater supervision.
But no matter how pressed Merritt may have felt by the
Department’s failings, or Clement’s duplicity, he still had a
mandatory duty under governing the Department’s rules, among
other things, to open and review the case file thoroughly before
closing it. He admits he did not do that. And he concedes that

25
had he followed proper protocols he would have seen it should not
be closed. The trial court correctly refused Merritt’s invitation to
look to the civil world for additional authority.
III.
Substantial Evidence Supports the Judgment
The Commission made numerous factual findings, as
enumerated above. Of those findings, Merritt contests two of
them. He argues insufficient evidence supports the finding that
(a) he failed to assess the continued propriety of the case plan,
and (b) he ignored an e-mail with important information
regarding the minor’s condition.
A. Standard of review
In reviewing the findings of the Commission, the trial court
is required to exercise its independent judgment. (Melkonians v.
Los Angeles County Civil Service Com. (2009) 174 Cal.App.4th
1159, 1167.) The trial court must “afford a strong presumption of
correctness concerning the administrative findings, and the party
challenging the administrative decision bears the burden of
convincing the court that the administrative findings are
contrary to the weight of the evidence.” (Fukuda v. City of Angels
(1999) 20 Cal.4th 805, 817.)
On appeal, we review the trial court’s findings under the
substantial evidence test. (Fukuda v. City of Angels, supra,
20 Cal.4th at p. 824; Yakov v. Board of Medical Examiners (1968)
68 Cal.2d 67, 72–75.) Under this extremely deferential test, we
accept as true the evidence that supports the judgment, disregard
conflicting evidence, and draw all reasonable inferences in favor
of the judgment. We focus on the findings made by the agency,
not those made by the trial court. (See M.N. v. Morgan Hill
Unified School Dist. (2018) 20 Cal.App.5th 607, 616–617.)

26
 B. Merritt failed to continually assess the family case
plan
The Commission concluded that Merritt failed to “assess
the continued propriety of the case plan, and failed to take other
actions based on the facts.” Merritt asserts that the
uncontradicted evidence in the record contradicts the
Commission’s finding.
There was evidence that Merritt was aware that several
people, including teachers at the school, had reported that
Gabriel had suffered continuing abuse, and that he had reported
suffering from suicidal ideation. Merritt points out that as a
result of these reports he assessed the continued propriety of the
case plan and assigned counseling services to the family. He
helped the family receive other services on several occasions and
modified the case plan accordingly.
However, the evidence, and the propriety of Merritt’s
actions, was not one-sided or uncontradicted. There was evidence
that he should have offered other services, including an updated
mental health consultation. He admitted that, on several
occasions, changes were not made to the case plan.
Merritt was required to assess on a continuing basis the
propriety of the family case plan. The fact he made some changes
to the plan is indicative of some assessment. But whether his
assessment was sufficiently continuing, and whether it assessed
the family’s needs adequately, are judgment calls. There was
substantial evidence, including Merritt’s failure to address the
mental health and sexual abuse issues, from which the
Commission could conclude that Merritt’s actions were not in
compliance with his duty. Therefore, the Commission’s finding of
this fact must be upheld.

27
 C. Merritt ignored an important e-mail
The Commission concluded that Merritt “overlook[ed], or
worse, ignore[ed] information that was directly e[-]mailed to
[him] regarding the mental health of minor Gabriel and possible
sexual abuse in the home.” But Merritt argues “the record
contains no evidence, contradicted or uncontradicted” that he
“ignored” any e-mails. The word “ignore” means to deliberately
disregard something. Although he admits he received the e-mail,
he testified that “somehow it got opened and closed, and I didn’t
recall it.” He also falls back on the press of business argument:
He received the e-mail on the same day he was assigned to
supervise a second office in addition to his normal office
responsibility and, as a result, his workload doubled overnight.
This was not a random e-mail of little significance. The e-
mail notified Merritt about an emergency response referral. The
allegation was that a relative and a companion had sexually
abused Gabriel. Merritt’s duty was to enter that information in
the case record. Under policy, the case was to remain open.
However, Merritt did not enter the information and closed the
case file despite the fact the emergency response referral was still
open.
Merritt may want to parse the Commission’s word choice
and argue that “ignored” is not justified. However, whether
Merritt overlooked or ignored the e-mail is of little importance
here. There was substantial evidence from which the
Commission could reasonably conclude that Merritt’s failure to
input the information and close the case file was either grossly
negligent or an intentional act. The Commission’s general
finding as to Merritt’s response to the e-mail will not be
disturbed.

28
 D. There is substantial evidence Merritt was negligent in
his supervision of Clement
Merritt argues that there was “no evidence in the record to
substantiate the trial court’s finding” that he negligently
supervised Clement. Relying on general principles of tort law, he
argues a supervisor cannot be held responsible for negligent
supervision of an employee unless there is some reason to believe
the employee would cause harm or there is some evidence that
would warn a reasonable person that the employee had a
propensity to commit bad acts. In support of this position, he
cites Z.V. v. County of Riverside (2015) 238 Cal.App.4th 889
(prior knowledge of bad act by employee), Albert v. Mid-Century
Ins. Co. (2015) 236 Cal.App.4th 1281 (employer had reason to
believe employee represented a risk of harm), Federico v.
Superior Court (1997) 59 Cal.App.4th 1207 (supervisor knows, or
should know, facts that employee presents an undue risk of harm
to third persons), and Doe v. Capital Cities (1996) 50 Cal.App.4th
1038 (specific dangerous conduct by employee, rape, was not
reasonably foreseeable).
Relying on these general principles of tort law, Merritt
argues that “the administrative record does not support the
conclusion that Merritt had reason to believe that Clement’s
employment created an undue risk of harm to Gabriel or that she
had a propensity to misrepresent information.” He knew she
“was deficient in some of her job duties.” And he noted on
Clement’s performance evaluations that she “struggled with
completing timely contacts which has resulted in poor statistics
being reported” and “that Clement has ‘struggled with home
visits and case plans.” From this, Merritt insists that he had no
reason to suspect that she would lie to him so egregiously on such

29
important issues. He then posits that he “cannot be held
responsible for preventing Clement’s misconduct through
supervision.”
Merritt is rightfully aggrieved that Clement made various
misrepresentations to him about several important facts. It is
undisputed she lied to him; and it is equally undisputed that he
accepted her misrepresentations at face value. But any
completed misrepresentation requires a willing listener, and
Merritt bears substantial responsibility for accepting her
statements incautiously.
Merritt understood that Clement was not a model social
worker and needed to be supervised closely. Yet, the evidence in
the record, which we review under the substantial evidence test,
supports the Commission’s conclusion that Merritt negligently
supervised her. He did not carefully check her work or scrutinize
her conclusions; and he signed off on case file actions based on
her say-so, without following strict department policy. For
example, it was his obligation to read every page of the case file
before closing it. The Department’s policy required it. But
Merritt chose not to open the file at all. He thereby missed the
signs that showed Clement had misrepresented key facts and
that the case could not be closed.
It was a calculated gamble. Merritt lost. He failed to
follow strict department policy and cannot now blame Clement
for his own failure to supervise her properly. And he certainly
cannot use general tort principles to deflect from his own
culpability. His actions must be judged based on what he did, not
on an analysis of what tort liability Clement might face if she
were sued.

30
 E. There is substantial evidence Merritt was negligent in
performing his own duties
The Commission found that Merritt broke the
Department’s policy by his “failure to review the paper case file
and the Department’s online CWS/CMS case record system
before closing Gabriel’s case,” and by his failure “to
ask . . . Clement appropriate and necessary questions about the
case at regular meetings between them.” Merritt argues the trial
court erred in finding he was negligent in performing his duties
because the “administrative record shows that [his] actions were
reasonable rather than negligent.”
Once again Merritt attempts to avoid consideration of his
own actions by urging that Clement and the Department are
responsible. He concedes he did not open or read the case file
before closing it. His excuse is that a policy requiring him to read
every document in the file imposes an “impossible burden.” If
this were a requirement in every case, he said he “would not have
time to do it.” He thus points out the CSW’s in his unit were so
overwhelmed that they were quitting or developing debilitating
health conditions.” The supposedly onerous policy also forced
him to rely on the representations of the individual social
workers, such as Clement. He could not reasonably anticipate
that Clement would lie to him, and he was entitled, as the trial
court understood, to believe her statements regarding the case.
It would be unfair to make him responsible for failing to check
her representations. Moreover, his “supervisors who had case
oversight responsibility also failed to take any action.”
Not surprisingly, Merritt does not cite any applicable
authority to support his wide-ranging finger pointing. The best
he can muster is a reference to general tort principles, which

31
misses the mark. From his vantage point, if there is not a “high
degree of foreseeability of harm,” then he is acting reasonably
and cannot have acted negligently. He continues by arguing that
his failure to read the entire case file in accordance with the
Department’s policy, and his failure to check on Clement’s actions
and statements relative to this case file, were all reasonable, not
negligent, because it was just too difficult to do what was
required.
We are not persuaded by Merritt’s attempt to foist blame
on everyone besides himself. Merritt did not do what he was
required to do. Whether the harm to Gabriel was foreseeable or
not is irrelevant. The Commission was looking at Merritt’s
personal actions and substantial evidence confirms he was
negligent in performing his own duties.
F. Merritt’s liability is neither reduced nor eliminated by
the Department’s alleged comparative negligence
Quoting from Li v. Yellow Cab Co. (1975) 13 Cal.3d 804,
Merritt reminds us that California has adopted a system of pure
comparative negligence. The “fundamental purpose” of this
system is “to assign responsibility and liability for damage in
direct proportion to the amount of negligence of each of the
parties.” (Id. at p. 829.)
However, Merritt fails to provide any authority that
suggests the comparative fault system applies in a public
employee discipline case. Nor does he provide any rational
reason why such a rule would or should be transplanted from the
tort world to a public employee disciplinary system.
Even if we assume for purposes of argument that the
Department’s system is overwhelmed by the number of children
in need, and even if we assume there is systemic understaffing by

32
the Department that has led to tragic consequences, Merritt does
not explain why the Department’s problems relieve him of his
responsibilities. If his argument prevailed, then the disciplinary
system would come to a halt. No employee could ever be
disciplined because there would always be the argument that no
matter how bad the employee’s actions, the Department’s
systemic failures were somehow worse. We are not inclined to
use this case to write the end of the public employee discipline
system for the County.
IV.
Discharge Was the Appropriate Discipline
Merritt argues that his punishment, discharge from his
supervisory position, was “unreasonably harsh.” He asserts the
Commission’s “finding is not based on an adequate consideration
of all relevant factors.” If the factors were properly evaluated
and considered, it would be clear that there was no rational
connection between the factors and the penalty chosen, and his
termination should be reversed. (See California Hotel & Motel
Ass’n v. Industrial Welfare Com. (1979) 25 Cal.3d 200, 212.)
A. Standard of review
In an administrative mandamus proceeding, neither we nor
the trial court may substitute our own judgment for that of the
agency where it comes to the penalty imposed by the
administrative body, unless we find the agency’s decision was
arbitrary, capricious, or a patent abuse of discretion. (Pasos v.
Los Angeles County Civil Service Com. (2020) 52 Cal.App.5th 690,
700; Oduyale v. California State Bd. of Pharmacy (2019) 41
Cal.App.5th 101, 117; County of Los Angeles v. Civil Service Com.
of County of Los Angeles (2019) 40 Cal.App.5th 871, 877.) We

33
must uphold the penalty decision “if there is any reasonable basis
to sustain it.” (County of Los Angeles, at p. 877.)
Our review of the penalty assessed is de novo, and we give
no deference to the trial court’s determination. (Pasos v. Los
Angeles County Civil Service Com., supra, 52 Cal.App.5th at
p. 700.) In determining whether the Commission abused its
discretion, the overriding consideration “ ‘is the extent to which
the employee’s conduct resulted in, or if repeated is likely to
result in, “[h]arm to the public service.” ’ ” (County of Los Angeles
v. Civil Service Com. of County of Los Angeles, supra,
40 Cal.App.5th at p. 877.)
B. The Commission did not abuse its discretion in
upholding Merritt’s discharge
The Commission found that discharge was appropriate in
this case because (a) the “harm to the public service caused by
this case is significant and has undermined public confidence in
the [Department],” (b) Merritt “displayed a lack of understanding
regarding the seriousness of his behavior and a lack of
responsibility for his conduct by attempting to blame his repeated
failure to perform even his most basic duties on his work load and
the number of [the Department’s] policies,” and (c) “given
[Merritt]’s poor judgment and failure to exercise proper
supervision in this case, there is a legitimate concern that [his]
errors in judgment may be repeated.”
Merritt complains that the Commission did not give due
consideration to the fact that any public confidence in the
Department was long ago shattered by a broken system that was
inevitably going to cause a tragedy. The shifting of the
responsibility for the public harm to Merritt is a brazen attempt
to deflect the Department’s own mismanagement. The decision

34
also perversely lays the blame for the intolerable working
conditions and lack of adequate support for the social workers on
Merritt as opposed to the Department, whose mismanagement
caused the problem. Its mismanagement should not be used as a
cudgel to impose greater punishment on Merritt. Finally, the
Commission ignored the fact that Merritt had been an excellent
employee of the Department for 24 years, was highly regarded by
his coworkers, and any perceived negligence should be viewed
simply as an aberration unlikely to be repeated.
The overriding consideration in assessing whether the
Commission abused its discretion in adopting the penalty it did is
the harm to the public service. (County of Los Angeles v. Civil
Service Com. of County of Los Angeles, supra, 40 Cal.App.5th at
p. 878.) Merritt concedes that there was grave harm done. He
simply argues it was the Department’s fault and he should not be
personally tarred by its systemic mismanagement. The
Commission, however, concluded that the harm was done by
Merritt’s actions. A perusal of the Commission’s findings of fact
as well as the administrative record discloses there is substantial
evidence in the record to support that conclusion. It may well be,
as Merritt argues, that the Department has some internal
housecleaning of its own to do. But Merritt is the subject of this
disciplinary proceeding. It is his actions that are being reviewed,
and in determining the appropriate penalty his negligence is
what the Commission must look at. We cannot say under all the
facts here that the Commission abused its discretion in
concluding that discharge was the appropriate penalty.
Finally, Merritt’s pitch that this was just an aberration of
an excellent employee, never to be repeated, is belied by the
record. He insisted that he could not read every page of every file

35
before closing them. There just simply was not enough time to do
it. That admission, that he could not follow the Department’s
policy, implying that he would continue his past practice of
relying on the verbal representations of the social workers he
supervised to determine what to do in any particular case, is
telling. He demonstrates he has not learned. And the tragedy
that unfolded in the underlying case here is just one unread file
away from happening again.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED.

SALTER, J.*

We concur:

LAVIN, Acting P. J.

EGERTON, J.

* Judge of the Orange County Superior Court, assigned by
the Chief Justice pursuant to article VI, section 6 of the
California Constitution.

36