appellate courts. (See St. Mary v. Superior Court (2014) 223 Cal.App.4th 762, 771,
fn. 14.) Kao contends the appropriate limitation period is the four-year statute of
limitations in Code of Civil Procedure section 343.1
We disagree with both parties. We conclude the appropriate limitation period is
the three-year statute of limitations in section 338, subdivision (a). As Kao's petition is
timely under this code section and the defense of laches cannot be determined from the
face of the petition, the court erred in sustaining the Department's demurrer. We,
therefore, reverse the judgment and remand the matter for further proceedings consistent
with this decision.
BACKGROUND
Kao's petition alleges, in February 2012, he submitted a disciplinary appeal to the
appeals coordinator of the prison where he was then housed. In March 2012, after he did
not receive either an acknowledgment or a rejection of the appeal, he sent a duplicate of
1 Further statutory references are to the Code of Civil Procedure unless otherwise stated.
2
the appeal to the appeals coordinator along with a request for the appeals coordinator to
file either the original or the duplicate.
In April 2012 the appeals coordinator returned the original appeal with a
transmittal stating the appeal was not on approved appeal forms. The transmittal
included the remarks "NO PHOTO COPIES[sic], ONLY ORIGINALS," "NO
DECLARATIONS ALLOWED," and "NO INMATE MANUFACTURED
DOCUMENTS." In addition, several documents Kao had submitted with the appeal
were crossed out. According to Kao, an inmate found guilty of a disciplinary charge only
receives a copy of the final disciplinary report, never the original, which he believes is
placed in the inmate's prison file. He also alleges the crossed-out documents were copies
of evidence submitted to and received by the hearing officer at the underlying
disciplinary hearing. He could not attach the originals to his appeal because the prison,
not Kao, maintained the originals.
A little more than a week after the appeals coordinator returned his appeal, Kao
resubmitted it. This time, he included a carbonless paper copy of the disciplinary report
instead of a photocopy. He also included a memo explaining why, in his view, the
appeals coordinator had improperly returned the appeal. The appeals coordinator
subsequently acknowledged receipt of the appeal and indicated it would be processed in
the order received; however, the appeals coordinator never processed it.2
2 Although Kao also alleges he submitted another related appeal in May 2012 that the appeals coordinator never processed, his petition does not seek any relief as to this appeal. 3
In May 2012 Kao wrote a letter to the prison warden requesting the warden require
the appeals coordinator to process the appeal. In July 2012 Kao received a letter from the
warden responding to several correspondences Kao had sent him regarding the
processing of inmate appeals. The letter did not directly address Kao's demand to have
his appeal processed, but stated the prison's staff had been trained about processing
inmate appeals and was in compliance with the Department's policy for screening out or
cancelling inmate appeals.
In April 2014 Kao filed the instant petition for writ of mandate seeking to compel
the Department to process his appeal. The Department demurred to the petition, asserting
the petition was untimely under the 60-day rule used to assess the timeliness of
nonstatutory writ petitions filed in appellate courts. Alternatively, the Department
asserted the petition was barred by the doctrine of laches. The court agreed the petition
was untimely under the 60-day rule. The court also found Kao had not established
justification for his delay in filing the petition. Consequently, the court sustained the
Department's demurrer without leave to amend and entered a judgment dismissing the
petition.3
3 Kao previously filed a similar petition for writ of mandate involving a May 2010 grievance alleging staff misconduct. The trial court entered an order denying the petition on the merits and we affirmed the order. (Kao v. California Department of Corrections & Rehabilitation (Jan. 17, 2013, D060814) [nonpub. opn.].)
Additionally, in March 2014, Kao filed a petition for writ of habeas corpus with this court (In re Kao (Sept. 8, 2014, D065661)) challenging the disciplinary action 4
DISCUSSION
The standards for reviewing a judgment of dismissal following the sustaining of a
demurrer without leave to amend are well settled. " ' "We treat the demurrer as admitting
all material facts properly pleaded, but not contentions, deductions or conclusions of fact
or law. [Citation.] We also consider matters which may be judicially noticed."
[Citation.] Further, we give the [petition] a reasonable interpretation, reading it as a
whole and its parts in their context. [Citation.] When a demurrer is sustained, we
determine whether the [petition] states facts sufficient to constitute a cause of action.
[Citation.] And when it is sustained without leave to amend, we decide whether there is a
reasonable possibility that the defect can be cured by amendment: if it can be, the trial
court has abused its discretion and we reverse; if not, there has been no abuse of
discretion and we affirm. [Citations.] The burden of proving such reasonable possibility
is squarely on the plaintiff.' " (Simonelli v. City of Carmel-by-the-Sea (2015) 240
Whether the court properly sustained the Department's demurrer turns on what
limitation period applies to Kao's petition. As Kao's petition ostensibly seeks to compel
the performance of a legally required act, the petition is for traditional mandamus under
section 1085. (See § 1085, subd. (a) ["A writ of mandate may be issued by any court to
any inferior tribunal, corporation, board, or person, to compel the performance of an act
underlying the instant mandate petition. In September 2014 we denied the habeas petition because Kao had not shown he had exhausted his administrative remedies.
5
which the law specially enjoins, as a duty resulting from an office, trust, or station"];
Gong v. Freemont (1967) 250 Cal.App.2d 568, 571 [a writ of mandate compelling a
ministerial act which the law specifically enjoins is commonly called " 'traditional
mandamus' "].)
" 'The statute of limitations applicable to a writ of mandamus under [section] 1085
depends upon the nature of the obligation sought to be enforced. [Citation.]' [Citation.]
'It is often difficult to decide which statute of limitations governs an action for writ of
mandate. The code provisions authorizing this action are silent as to the time within
which it must be filed. [Citation.] Accordingly, the courts have developed the rule that
the question is to be resolved not by the remedy prayed for but by the nature of the
underlying right or obligation that the action seeks to enforce.' " (Branciforte Heights,
LLC v. City Of Santa Cruz (2006) 138 Cal.App.4th 914, 926.)
The basis for this rule is section 1109, which is in the part of the Code of Civil
Procedure governing special proceedings of a civil nature (§ 1063 et seq.), under the title
governing writs of review, mandate, and prohibition (§ 1067 et seq.). (W.R. Grace & Co.
v. California Employment Comm. (1944) 24 Cal.2d 720, 726-727; Allen v. Humboldt
County Board of Supervisors (1963) 220 Cal.App.2d 877, 884.) Section 1109 states:
"Except as otherwise provided in [the title of the Code of Civil Procedure governing writs
of review, mandate, and prohibition], the provisions of [the part of the Code of Civil
Procedure governing civil actions (§§ 307-1062.20)] are applicable to and constitute the
rules of practice in the proceedings [for writs of review, mandate, and prohibition]."
6
Among the rules of practice section 1109 deems applicable to petitions for writ of
mandate are the code sections governing the time for commencing civil actions (§§ 312-
366.3). (See § 363 ["The word 'action' as used in [the title of the Code of Civil Procedure
governing the time for commencing civil actions] is to be construed, whenever it is
necessary so to do, as including a special proceeding of a civil nature"].) Unless a
different limitation period is prescribed by statute elsewhere, we must look to the code
sections governing the time for commencing civil actions to determine the limitation
period applicable to Kao's petition. (§ 312 ["Civil actions, without exception, can only be
commenced within the periods prescribed in [the title of the Code of Civil Procedure
governing the time for commencing civil actions] . . . unless where, in special cases, a
different limitation is prescribed by statute," (italics added)].)
The 60-day rule is not included within the code sections governing the time for
commencing civil actions. Rather, it is a judicially created rule used presumptively by
appellate courts to assess the timeliness of nonstatutory writ petitions seeking
discretionary review of trial court decisions. Its purpose is to keep the time period for
seeking writ review on par with the time period for seeking appellate review, absent
extraordinary circumstances. (See Keys v. Board of Supervisors (1871) 42 Cal. 252, 255-
256; Reynolds v. Superior Court of County of Los Angeles (1883) 64 Cal. 372, 373;
People v. Municipal Court (Mercer) (1979) 99 Cal.App.3d 749, 752; Scott v. Municipal
Court (1974) 40 Cal.App.3d 995, 996-997; Volkswagen of America, Inc. v. Superior
Court (2001) 94 Cal.App.4th 695, 701; St. Mary v. Superior Court, supra, 223
Cal.App.4th at p. 771, fn. 14.) Since Kao's petition seeks to compel the Department to
7
act and does not seek discretionary review of a decision by the Department, application
of the 60-day rule would not appear to serve an analogous purpose in this case. Even if
the rule would serve an analogous purpose, the Department has not identified nor have
we located a statute prescribing the application of the 60-day rule to petitions such as
Kao's petition. Absent such statutory authority, sections 312 and 1109 preclude us from
applying the 60-day rule to Kao's petition.
Of the limitation periods courts may apply under sections 312 and 1109, Kao
advocates for the limitation period in section 343. Section 343 states: "An action for
relief not hereinbefore provided for must be commenced within four years after the cause
of action shall have accrued." However, this limitation period "applies only when no
other more specific limitation period is applicable." (Brandenburg v. Eureka
Redevelopment Agency (2007) 152 Cal.App.4th 1350, 1359.) Thus, if the code sections
governing the time for commencing civil actions include a limitation period more
specifically applicable to Kao's petition, the limitation period in section 343 does not
apply.
Whether there is a more specifically applicable limitation period depends on the
gravamen of Kao's petition. As previously stated, the petition seeks to compel the
Department to process a disciplinary appeal Kao filed. The Department is obliged to
process disciplinary appeals by the regulations in the California Code of Regulations, title
15, section 3084 et seq. These regulations are quasi-legislative rules the Department
promulgated as part of lawmaking power delegated by the Legislature. (Pen. Code,
§ 5058, subd. (a); In re Cabrera (2012) 55 Cal.4th 683, 687-688.) Quasi-legislative rules
8
have the dignity of statutes. (In re Cabrera, supra, at p. 688.) Thus, the gravamen of
Kao's petition is to compel the Department to comply with a statutory obligation.
The limitation period for an action based upon a liability created by statute, other
than a penalty or forfeiture, is three years. (§ 338, subd. (a); County Sanitation Dist. v.
Superior Court (1990) 218 Cal.App.3d 98, 106-107 ["An obligation is 'a liability created
by statute' within the meaning of [section 338, subdivision (a),] . . . [citation], if the
liability was created by law in the absence of an agreement [citation], or if the duty is
fixed by the statute itself"].) Since the face of Kao's petition indicates he filed his petition
within three years of the Department's alleged failure to process his disciplinary appeal,
the Department has not shown the petition fails to state a cause of action because it is
time-barred.
II
The Department also has not shown the petition fails to state a cause of action
because it is barred by the doctrine of laches. "The equitable defense of laches may be
raised to deny a petition for a writ of mandate even though the applicable statute of
limitations has been satisfied." (Ragan v. City of Hawthorne (1989) 212 Cal.App.3d
1361, 1368.) However, "unreasonable delay by the plaintiff is not sufficient to establish
laches. There must also be prejudice to the defendant resulting from the delay or
acquiescence by the plaintiff." (Ibid., fn. omitted.) For a demurrer to be sustained based
on the doctrine of laches, "both the delay and the injury must be disclosed in the
complaint." (Sangiolo v. Sangiolo (1978) 87 Cal.App.3d 511, 514; accord, Conti v.
Board of Civil Service Comm'rs (1969) 1 Cal.3d 351, 362 ["Laches may be raised by
9
demurrer, but only if the complaint shows on its face unreasonable delay plus prejudice
or acquiescence"].)
In this case, the face of Kao's petition contains no facts showing prejudice to the
Department. Further, and contrary to the Department's assertion, Kao had no obligation
to plead around a laches defense. (Conti v. Board of Civil Service Comm'rs, supra, 1
Cal.3d at p. 362 [because delay does not establish the defense of laches in the absence of
prejudice or acquiescence, a petitioner need not plead excuse or explanation].)
Accordingly, to the extent the court relied on the doctrine of laches to sustain the
Department's demurrer, the court erred in doing so.
DISPOSITION
The judgment is reversed. The matter is remanded to the trial court for further
proceedings consistent with this decision. Kao is awarded his costs on appeal.
MCCONNELL, P. J.
WE CONCUR:
NARES, J.
AARON, J.
10
AI Brief
AI-generated · verify before citing
Holding. The court held that the three-year statute of limitations under Code of Civil Procedure section 338, subdivision (a) applies to a petition for writ of mandate seeking to compel the Department of Corrections and Rehabilitation to process a disciplinary appeal. Because the petition was filed within this period and laches could not be determined from the face of the pleading, the trial court erred in sustaining the demurrer.
Issues
What limitation period applies to a petition for writ of mandate seeking to compel the Department of Corrections and Rehabilitation to process a disciplinary appeal?
Did the trial court err in sustaining the Department's demurrer based on the 60-day rule or the doctrine of laches?
Disposition. reversed
Quotations verified verbatim against the opinion
“We conclude the appropriate limitation period is the three-year statute of limitations in section 338, subdivision (a).”
“The limitation period for an action based upon a liability created by statute, other than a penalty or forfeiture, is three years.”