Filed 2/22/16

CERTIFIED FOR PUBLICATION

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

CHUNG KAO,

Plaintiff and Appellant,

v.

CALIFORNIA DEPARTMENT OF 

CORRECTIONS AND REHABILITATION,

Defendant and Respondent.

 D067519

 (Super. Ct. No. 37-2014-00013010-

CU-WM-CTL)

APPEAL from a judgment of the Superior Court of San Diego County, 

Timothy B. Taylor, Judge. Reversed.

Chung Kao, in pro. per., for Plaintiff and Appellant.

Kamala D. Harris, Attorney General, Jennifer A. Neill, Assistant Attorney 

General, Phillip J. Lindsay and Gregory J. Marcot, Deputy Attorneys General, for 

Defendant and Respondent.

INTRODUCTION

Inmate Chung Kao appeals a judgment dismissing his petition for writ of mandate. 

The petition sought to compel the Department of Corrections and Rehabilitation 

(Department) to process a disciplinary appeal Kao submitted in 2012. The trial court 
2

dismissed the petition after sustaining the Department's demurrer without leave to amend 

on the grounds the petition was untimely and Kao had failed to establish justification for 

the delay in filing it. 

Resolving this appeal principally requires us to decide what limitation period

applies to Kao's petition. The Department contends the appropriate limitation period is 

the 60-day rule used to assess the timeliness of nonstatutory writ petitions filed in

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.
3

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.
4

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 
5

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 

Cal.App.4th 480, 483, quoting Blank v. Kirwan (1985) 39 Cal.3d 311, 318.)

I

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.
6

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]." 
7

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 
8

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 
9

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 
10

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.