Kao v. Cal. Dept. of Corr. & Rehab.
Annotate this CaseInmate Chung Kao appealed the dismissal of his petition for a writ of mandate. Kao wanted to compel the Department of Corrections and Rehabilitation (Department) to process a disciplinary appeal he submitted in 2012. The trial court 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. The issue this case presented for the Court of Appeal's review concerned what limitation period applied to Kao's petition. The Department contended the appropriate limitation period was the 60-day rule used to assess the timeliness of nonstatutory writ petitions filed in appellate courts. Kao contended the appropriate limitation period was the four-year statute of limitations in Code of Civil Procedure section 343.1. The Court of Appeal disagreed with both parties: the appropriate limitation period was the three-year statute of limitations in section 338, subdivision (a). Kao's petition was timely under this code section and the defense of laches could not be determined from the face of the petition. As such, the Court concluded the trial court erred in sustaining the Department's demurrer. The judgment was reversed and the case remanded for further proceedings.
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