Filed 9/15/16 Fricks v. Superior Court 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                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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               IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                DIVISION THREE



MARQUE D. FRICKS,                                                      B265309

         Petitioner,                                                   (Los Angeles County
                                                                       Super. Ct. No. BH010027)
         v.

SUPERIOR COURT OF LOS ANGELES
COUNTY,

         Respondent;

CALIFORNIA DEPARTMENT OF
CORRECTIONS AND REHABILITATION,

         Real Party in Interest.



         Petition for writ of habeas corpus challenging an order of the Superior Court of
Los Angeles County, William C. Ryan, Judge, treated as petition for writ of mandate.
Petition granted.
         Rich Pfeiffer, under appointment by the Court of Appeal, for Petitioner.
         No appearance for Respondent.
         Kamala D. Harris, Attorney General, Jennifer A. Neill, Assistant Attorney
General, Julie A. Malone, and Charles Chung, Deputy Attorneys General, for Real Party
in Interest.
       By petition for writ of habeas corpus (which we deem a petition for writ of
mandate), Marque Fricks asks this court to order the superior court to consider on the
merits Fricks’s March 4, 2015 petition for writ of mandate seeking the return of personal
property seized by the California Department of Corrections and Rehabilitation (CDCR).
We conclude that Fricks exhausted his administrative remedies, and thus we direct the
trial court to consider Fricks’s writ petition on the merits.
                  FACTUAL AND PROCEDURAL BACKGROUND
       1. Fricks’s Lost Property Claim.
       Fricks, while an inmate at Calipatria State Prison,1 filed a lost property claim in
December 2013, seeking the return of property he alleged was confiscated during a
November 7, 2013 search of his prison cell. Fricks alleged that prison officials removed
all of his personal property during the cell search, stored it in another location, and then
purported to return it to him. However, he asserted that most of the returned property
actually belonged to other prisoners and that much of his own property was never
returned. In particular, Fricks complained that he had been deprived of a jacket he
needed because of the cold weather, as well as some irreplaceable family photographs.
       Between December 2013 and December 2014, Fricks pursued his lost property
claim through the CDCR administrative appeals process as set forth in Title 15 of the
California Code of Regulations. He filed two inmate appeals with prison authorities, the
last of which was cancelled in December 2014. From the documents submitted by the
parties, we glean the following history of Fricks’s inmate appeals.
              a. Fricks’s November 17, 2013 Request (Form 22).
       On about November 17, 2013, Fricks submitted a Form 22 “Parolee Request for
Interview, Item, or Service” explaining that when he was returned to his cell after the
November 7 search, “all my personal property was gone. . . . I’m missing all my personal



1
      Fricks has informed us that he has been transferred to Los Angeles Palma
Correctional Center in Eloy, Arizona.


                                               2
clothing, [hygiene,] food, fan, battery charger, etc. I would highly appreciate your
assistance.”
       The CDCR responded by letter dated November 20, 2013. The letter
acknowledged the November 7 search of Fricks’s cell by the Investigative Services Unit
and said, among other things: “During the course of the inquiry, it was concluded that
you were not involved in possession of the contraband items discovered in your cell and
released back to Facility ‘B’. As a result, your Inmate/Parolee Request for Interview,
Item or Service (CDCR 22) needs to [be] addressed to your Housing Unit Officers who
were responsible at the time to inventory your personal property.”
               b. Fricks’s November 26, 2013 Request (Form 22).
       Fricks submitted another “Parolee Request for Interview, Item, or Service” on
about November 26, 2013. The form, which appears to have been hand-delivered to
Correctional Officer Rodriguez, said: “It’s been 2 1/2 weeks and I’m still missing at least
85% of my property.”
       Correctional Officer Rodriguez responded on November 28, 2013: “I did not
inventory your property, but I did look into the cell after ISU Officers searched Cell 113
and I saw a lot of property . . . in a pile on the ground. After your property was
inventoried Officer Moses and I took all the property from Cell 113 to R & R for storage.
You need to contact c/o Grant, R & R.”
       Fricks responded on December 9, 2013: “It’s been a month since my cell was
searched and my property was taken. I’ve been respectful [and] as patient as possible,
trying to collect my property and I’ve still received nothing. So I’m going through the
chain of command in hopes of getting close to getting my property back. I would highly
appreciate your assistance.”
               c. Fricks’s First Appeal (Form 602) (December 2013).
                     (1) First level review.
       Fricks submitted an “Inmate/Parolee Appeal” (Form 602) on about December 11,
2013. Fricks explained that he and his cellmate had been removed from their cell while it
was searched on November 7, 2013; he returned to his cell to find all his personal


                                               3
property missing; and a correctional officer informed him the missing property had been
taken to storage and would be returned to him. However, the items returned belonged
almost exclusively to his cell-mate and two other prisoners: “Besides my T.V., a few
books, paperwork, and my shoes, everything else was . . . taken back to R & R for
storage. I’ve yet to receive the rest of my property. It’s been over a month and I’ve
submitted paperwork to the officers that were involved with my property. I’ve also went
[sic] through the chain of command (Sgt. Moore . . . C/O Rodriguez, Sgt. Marquez,
Lt. Martinez & Capt. Moore) addressing my issues [and] concerns but no actions have
been taken.” Fricks asked that his appeal “be accepted as a[n] emergency 602” because
(1) “[d]ue to the (cold) weather change I’m unable to put on the proper clothing to
prevent from getting sick. I don’t even have a state issued jacket,” and (2) “[b]ecause of
the irreplaceable pictures that I’m still missing of my daughter, my two brothers[’]
funeral and my family.”
       The CDCR’s response, dated December 18, 2013, stated that Fricks’s appeal had
been rejected under California Code of Regulations, title 15, section 3084.6, subdivision
(b)(7)2 because it was missing supporting documents required by section 3084.3. It also
stated: “Your appeal is missing . . . : [¶] PROPERTY INVENTORY SLIP [¶]
RECEIPTS [¶] CELL SEARCH SLIP [¶] ALSO, WHAT PROPERTY IS MISSING?
WHAT IS EVERYTHING ELSE? BE SPECIFIC.”
       Fricks’s handwritten response, dated January 5, 2014, stated that Fricks was
enclosing his “property inventory slip [and] all receipts for all the property I’m missing
(list of items missing enclosed as well). No cell search slip was provided, but here are
the 1083’s [inmate property inventories] for the missing property in question.”
       The CDCR rejected Fricks’s appeal for the second time on February 28, 2014.
The notice of rejection stated: “Your appeal has been rejected pursuant to California
Code of Regulations, Title 15, Section (CCR) 3084.6(b)(9). Your appeal issue is


2
      All further regulatory citations are to Title 15 of the California Code of
Regulations, unless otherwise indicated.


                                             4
obscured by pointless verbiage or voluminous unrelated documentation such that the
reviewer cannot be reasonably expected to identify the issue under appeal. [¶]
CLARIFY REQUEST. IT APPEARS THAT YOUR REQUEST IS TO ACCEPT THIS
APPEAL AS AN EMERGENCY DUE TO WEATHER CHANGE (NECESSITY OF A
JACKET) AND THE IRREPLACABLE PICTURES. ARE YOU REQUESTING
PROPERTY? IF SO, YOU NEED TO INDICATE THIS WITHIN YOUR REQUEST
IN SECTION B OF 602. BE SPECIFIC.”
       Fricks’s response, dated March 4, 2014, says: “It’s obvious after almost four
months without my property what I was requesting. . . . Why almost two months to tell
me my 602 has been rejected? This doesn’t make sense, at all.”
       The CDCR rejected3 Fricks’s appeal for a third time on March 27, 2014. The
notice of rejection advised Fricks that “YOU DID NOT FINISH THE FORM 22
PROCESS. YOU WERE INSTRUCTED BY C/O G. RODRIGUEZ TO SEND YOUR
FORM 22 TO R & R C/O GRANT. YOU NEED TO DO THAT TO SEE IF THIS CAN
BE RESOLVED BEFORE SENDING APPEAL TO THIS OFFICE.”
       Fricks’s response, dated April 2, 2014, stated: “There was no need to forward a
form 22 to c/o Grant because I spoke with him personally. If you would read all
documents that I’ve submitted, you would see a 1083 form4 dated 12/12/13 provided and
signed by c/o Grant. I’ve submitted all necessary documents to further process this
appeal. [¶] Please read all submitted documents before forwarding anything back to
me.”




3
       Although neither this notice, nor the subsequent one issued on April 22, 2014,
used the word “rejected” they appear to have been rejections because they informed
Fricks that his appeal documents were being returned to him because of a procedural
deficiency.
4
      The CDCR Form 1083 is an Inmate Property Inventory Form. (See Escamilla v.
Department of Corrections & Rehabilitation (2006) 141 Cal.App.4th 498, 502
(Escamilla).)


                                            5
       The CDCR rejected Fricks’s appeal for the fourth time on April 22, 2014. The
notice of rejection stated: “AS PREVIOUSLY INSTRUCTED ON 2/28/14; CLARIFY
REQUEST. IT APPEARS THAT YOUR REQUEST IS TO ACCEPT THIS APPEAL
AS AN EMERGENCY DUE TO WEATHER CHANGE (NECESSITY OF A JACKET)
AND THE IRREPLACABLE PICTURES. ARE YOU REQUESTING PROPERTY? IF
SO, YOU NEED TO INDICATE THIS WITHIN YOUR REQUEST IN SECTION B OF
602. BE SPECIFIC.”
       Fricks’s response, dated May 6, 2014, stated: “On 12-18-13 you asked me to
provide you with a property inventory slip, receipts and a cell search slip, which I did. So
it’s clear that I’m requesting my property. I’ve enclosed a list of property I’m missing
which is no longer with my 602 so I’m enclosing another one.”
       Fricks’s appeal was “cancelled” at the “first level” on July 15, 2014. The notice of
cancellation began by restating the essence of Fricks’s appeal, i.e., that following a cell
search all his property was missing and that, although some property was returned, none
of it except for a few items belonged to Fricks. This summary of Fricks’s claim was then
followed by these paragraphs:
       “APPEAL RESPONSE: [¶] An investigation of your appeal was conducted,
which included your appeal with attachments . . . . On June 19, 2014 you refused to
participate in a telephonic interview with Sergeant B. Legier . . . . Sergeant T. Case was
the witness to your refusal.
       “FINDINGS: [¶] As a result of your refusal to participate pursuant to Title 15,
CCR section 3084.6(a)(c)(8) which says in part: An appeal may be cancelled for any of
the following reasons, which include, but are not limited to: The appellant refuses to be
interviewed or to cooperate with the reviewer.
       “APPEAL DECISION: [¶] Based on this review, your appeal is CANCELLED at
the FIRST Level of Review.”
                     (2) Second level review.
       On about July 22, 2014, Fricks received a notice that his appeal had been rejected
at the “second level” because, “The appeal is incomplete. Your appeal is being returned


                                              6
for the following reason(s): [¶] IF YOU ARE UNSATISFIED WITH THE FIRST
LEVEL DECISION, THEN YOU NEED TO FILL OUT SECTION D OF THE 602
AND RETURN IT.” The notice also stated that, “If you are required to respond/explain
to this CDC Form 695, use only the lines provided below.” (Italics added.)
       Fricks submitted a response, dated August 18, 2014, on the “lines provided below”
on CDC Form 695, as follows: “Never once did I refuse a interview. Back in February
2014[,] I was interviewed by Sgt. Olmos who partially granted my 602 at the first level.”
       Fricks apparently did not receive a response to this submission.
                     (3) Third level review
       Sometime after August 18, 2014, Fricks sent a letter to the Office of Appeals in
Sacramento, addressed “To: Whom It May Concern.” It stated that Fricks was writing
“because my 602 was cancelled . . . . All supporting documents was [sic] and are
attached along with this 602. I was told that my 602 is cancelled out because I
supposedly refused an over the phone interview which was false . . . .”
       Fricks received a response from the Office of Appeals in Sacramento, dated
September 30, 2014, stating: “The Office of Appeals, California Department of
Corrections and Rehabilitation (CDCR) acts as the third level of review . . . . The Office
of Appeals examines and responds to inmate and parolee appeals, after the institution or
parole region has responded at the Second Level of Appeal. [¶] It has been determined
that you are attempting to submit an appeal that has been previously cancelled. Pursuant
to CCR 3084.4 you are advised that this is considered misuse or abuse of the appeals
process. Repeated violations may lead to your being placed on appeal restriction as
described in CCR 3084.4(g).”
              d. Fricks’s Second Appeal (Form 602) (December 2014).
       On December 1, 2014, Fricks submitted a new Form 602. He characterized the
subject of his appeal as: “(Personal Property) Appealing canceled 602.” He stated: “I
filed a 602 back in December 2013 concerning the lost [sic] of my personal property.
After several requests for interviews my 602 was heard in February 2014 by Sgt. Olmos
on B-yard, which he granted in part at the first level. . . . [I]n June 2014[,] I received my


                                              7
602 along with a first level response stating that my 602 was being canceled due to I
refused to participate in a telephonic interview with Sgt. B. Legier and Sgt. T. Case was
the witness to me refusing. I’ve never been called to participate in a telephone interview
and Sgt. T. Case [has] never spoken to me concerning a telephone interview or that he
suppose to had [sic] witness me refusing the telephone interview.” Fricks requested that
“my 602 . . . be heard in its entirety without ignoring the facts that are present.”
       On about December 4, 2014, Fricks received notice that his second appeal had
been cancelled because “[t]ime limits for submitting the appeal are exceeded even though
you had the opportunity to submit within the prescribed time constraints. [¶] YOU
STATE THAT IN 6/2014 YOU WERE INFORMED THE 602 WAS BEING
CANCELLED DUE TO YOU REFUSING TO PARTICIPATE IN A PHONE
INTERVIEW. YOU DID NOT SUBMIT YOUR APPEAL UNTIL 12/1/14 BEYOND
THE 30 DAY TIME FRAME.”
       2. Petition for Writ of Mandate.
       Fricks filed a pro se petition for writ of mandate in the superior court on March 4,
2015, seeking the return of his property. On June 24, 2015, the superior court issued a
Memorandum of Decision denying Fricks’s petition for failure to exhaust administrative
remedies: “The Court finds that the Respondent CDCR has complied with its ministerial
duty to process Petitioner’s appeal. Because Petitioner has not exhausted his
administrative remedies the Court cannot rule on his underlying claim regarding his
property . . . . Exhaustion of remedies only occurs when it gets to third level review, and
contrary to Petitioner’s argument, a cancellation or a rejection decision does not exhaust
administrative remedies. (Cal. Code Regs., tit. 15, section 3084.1(b).)”
       3. The Present Petition.
       On July 10, 2015, Fricks filed a pro se petition for writ of habeas corpus in this
court. Fricks urged that the superior court “abuse[d] [its] discretion and erroneously
denied petitioner[’]s [petition for] writ of habeas corpus . . . . The court found that
respondent CDCR had complied with its ministerial duty to process petitioner’s appeal
[and] as such, petitioner failed to exhaust his administrative remedies. Petitioner asserts


                                              8
the court is in error and relief is warranted in this case and the matter must be remanded
for further proceedings.”
       After soliciting an informal response from the Attorney General, this court granted
Fricks’s habeas corpus petition on January 7, 2016, and ordered the superior court to
consider Fricks’s petition for writ of mandate on the merits.
       On January 22, 2016, the Attorney General filed a petition for rehearing. (See
People v. Romero (1994) 8 Cal.4th 728, 734.) On January 28, 2016, we granted the
rehearing petition, vacated our previous order, and issued an order to show cause. We
ordered the Attorney General to file a response to Fricks’s habeas corpus petition and
ordered the appointment of counsel to represent Fricks.
                                      DISCUSSION
       Fricks contends that the trial court erred in concluding that he did not exhaust his
administrative remedies. Because the trial court based its decision solely on documentary
evidence without holding an evidentiary hearing, we independently review the record to
determine whether the writ was properly denied for failure to exhaust administrative
remedies. (In re Hudson (2006) 143 Cal.App.4th 1, 6; In re Rosenkrantz (2002)
29 Cal.4th 616, 677.)
       For the reasons that follow, we conclude that Fricks exhausted his available
administrative remedies. We therefore send the matter back to the trial court for a
consideration of the merits of Fricks’s lost property claim.
       1. Exhaustion of Administrative Remedies and Standard of Review.
       “The ‘rule of exhaustion of administrative remedies is well established in
California jurisprudence.’ (Campbell v. Regents of University of California (2005)
35 Cal.4th 311, 321 (Campbell).) Generally, it means a party must exhaust
administrative remedies before resorting to the courts. (Coachella Valley Mosquito &
Vector Control Dist. v. California Public Employment Relations Bd. (2005) 35 Cal.4th
1072, 1080.) More specifically, ‘ “[t]he doctrine of exhaustion of administrative
remedies requires that where a remedy before an administrative agency is provided by
statute, regulation, or ordinance, relief must be sought by exhausting this remedy before


                                             9
the courts will act.” [Citation.]’ (Kaiser Foundation Hospitals v. Superior Court
(2005) 128 Cal.App.4th 85, 99-100.)” (Parthemore v. Col (2013) 221 Cal.App.4th 1372,
1379.) “The requirement that administrative remedies be exhausted ‘applies to
grievances lodged by prisoners.’ [Citations.]” (In re Dexter (1979) 25 Cal.3d 921, 925.)
       2. California’s Inmate Appeal Process.
       California’s grievance system for prisoners seeking to challenge their conditions
of confinement is described in Article 8 of the California Code of Regulations. (See Cal.
Code Regs., tit. 15, §§ 3084–3086.) Because those regulations are central to our analysis,
we discuss them in some detail.
       Section 3084.1 states that any inmate or parolee under the CDCR’s jurisdiction
may appeal “any policy, decision, action, condition, or omission by the department or its
staff that the inmate or parolee can demonstrate as having a material adverse effect upon
his or her health, safety, or welfare.” (Id., subd. (a).) The appeal process “is intended to
provide a remedy for inmates and parolees with identified grievances and to provide an
administrative mechanism for review of departmental policies, decisions, actions,
conditions, or omissions that have a material adverse effect on the welfare of inmates and
parolees.” (§ 3084.1.)
       Section 3084.2 provides that an inmate “shall use a CDCR Form 602 (Rev. 08/09),
Inmate/Parolee Appeal, to describe the specific issue under appeal and the relief
requested.” First and second level appeals “shall be submitted to the appeals coordinator
at the institution or parole region for processing.” (Id., subd. (c).) All appeals “shall be
initially submitted and screened at the first level unless the first level is exempted.”
(§ 3084.7, subd. (a).) The second level “is for review of appeals denied or not otherwise
resolved to the appellant’s satisfaction at the first level, or for which the first level is
otherwise waived by these regulations. The second level shall be completed prior to the
appellant filing at the third level as described in subsection 3084.7(c).” (Id., subd. (b).)
If the inmate is dissatisfied with the second level response, he or she “may submit the
appeal for a third level review, as described in section 3084.7, provided that the time
limits pursuant to section 3084.8 are met.” (§ 3084.2, subd. (d).)


                                               10
       Under section 3084.6, subdivision (b), appeals may be rejected for a variety of
reasons, including failing to allege specific facts (id., subd. (b)(6)), “missing necessary
supporting documents” (id., subd. (b)(7)), and “[t]he appeal issue is obscured by pointless
verbiage . . . such that the reviewer cannot be reasonably expected to identify the issue
under appeal” (id., subd. (b)(9)). Under section 3084.6, subdivision (c), appeals may also
be cancelled for a variety of reasons, including if the inmate “continues to submit a
rejected appeal while disregarding appeal staff’s previous instructions to correct the
appeal including failure to submit necessary supporting documents” (id., subd. (c)(3)),
“refuses to be interviewed or to cooperate with the reviewer” (id., subd. (c)(8)), or fails
“to correct and return a rejected appeal within 30 calendar days of the rejection” (id.,
subd. (c)(10)).
       An appeals coordinator or delegated staff member “shall screen all appeals prior to
acceptance and assignment for review.” (§ 3084.5, subd. (b).) “When an appeal is not
accepted, the inmate or parolee shall be notified of the specific reason(s) for the rejection
or cancellation of the appeal and of the correction(s) needed for the rejected appeal to be
accepted.” (Id., subd. (b)(3).) Further, “[u]nless the appeal is cancelled, the appeals
coordinator shall provide clear and sufficient instructions regarding further actions the
inmate or parolee must take to qualify the appeal for processing.” (§ 3084.6,
subd. (a)(1).)
       Once cancelled, “an appeal shall not be accepted” (3084.6, subd. (e)), except
pursuant to subsection 3084.6, subdivision (a)(3), which provides: “At the discretion of
the appeals coordinator or third level Appeals Chief, a cancelled appeal may later be
accepted if a determination is made that cancellation was made in error or new
information is received which makes the appeal eligible for further review.” However,
“the application of the rules provided in subsection 3084.6(c) to the cancelled appeal may
be separately appealed.” (Id., subd. (e).)




                                             11
       Unless otherwise stated, “all appeals are subject to a third level of review, as
described in section 3084.7, before administrative remedies are deemed exhausted. . . . In
addition, a cancellation or rejection decision does not exhaust administrative remedies.”
(§ 3084.1, subd. (b).)
       3. Fricks Exhausted His Administrative Remedies.
       The Attorney General urges, and the trial court agreed, that Fricks failed to
exhaust his administrative remedies because he did not complete the second or third level
review process. Specifically, the Attorney General asserts: “The second-level appeal
was rejected and returned to Fricks on July 22, 2014 because he failed to complete the
appropriate portion of the appeals form as section 3084.6, subdivision (b)(13) of the
California Code of Regulations requires.[5] Fricks did not correct this deficiency.
Instead, as Fricks states in his petition, he wrote a letter to the Office of Appeals in
Sacramento, California. By declining to resubmit this appeal, Fricks attempted to bypass
the proper appeals procedures and respondent has no ministerial duty to process an
appeal under such circumstances.”
       We do not agree with the Attorney General that Fricks failed to complete the
second level review process. As the Attorney General notes, the CDCR’s July 22, 2014
notice to Fricks stated that his appeal was being rejected because it was “incomplete.”
However, the rejection notice did not clearly advise Fricks in what way his appeal was
incomplete or what he was required to do to correct the omission. Instead, the notice
directed Fricks both that (1) “If you are unsatisfied with the first level decision, then you
need to fill out section D of the 602 and return it,” and (2) “If you are required to
respond/explain to this CDC Form 695, use only the lines provided below.” (Italics
added.) Faced with these contradictory instructions, Fricks used “the lines provided
below” to assert that he had never refused to be interviewed, and then resubmitted the
notice to the CDCR on or about August 18, 2014.

5
       Section 3084.6, subdivision (b)(13) provides that an appeal may be rejected if it
“is incomplete; for example, the inmate or parolee has not provided a signature and/or
date on the appeal forms in the designated signature/date blocks provided.”

                                              12
       The Attorney General urges that Fricks’s August 18, 2014 submission was
inadequate because Fricks “did not comply” with the instructions to fill out section D of
Form 602, thus “abandoning” his appeal. But as we have said, the form rejecting Fricks’s
appeal did not unambiguously direct him to fill out section D of Form 602. Rather, it
directed him both to fill out section D and to “use only the lines provided below.” Since
it was impossible for him to follow both instructions—that is, he could not use “only the
lines provided below” and fill out and return section D of Form 602—Fricks used the
lines provided to explain that he had never refused to be interviewed. In doing so, Fricks
corrected “the reason noted for the rejection,” and thus he did what he was required to do
by section 3084.6, subdivision (a)(2).6
       The Attorney General contends that even if Fricks submitted a second level
appeal, he nonetheless did not exhaust his administrative remedies because his appeal did
not proceed to a third level review. Again, we do not agree. While the regulations
unquestionably provide for a three-level review process, they provide no guidance as to
how the third level review is to be reached if the CDCR does not respond to a prisoner’s
second level appeal. That is, the regulations detail what a prisoner must do when his
appeal is “rejected” or “cancelled” (§ 3084.6)—but they make no provision for a situation
like that present here, where the CDCR fails either to reject or cancel a second level
appeal.
       The Court of Appeal addressed a similar situation in In re Hudson, supra,
143 Cal.App.4th 1, where a prisoner filed an administrative appeal challenging a special
condition of his parole. When he received no response from the Department of Adult
Parole Operations (DAPO), he filed a petition for writ of habeas corpus, which the
superior court granted. (Id. at p. 6.) The CDCR appealed, urging that the petition should




6
       Section 3084.6, subdivision (a)(2) provides: “An appeal that is rejected pursuant
to subsection 3084.6(b) may later be accepted if the reason noted for the rejection is
corrected and the appeal is returned by the inmate or parolee to the appeals coordinator
within 30 calendar days of rejection.”

                                            13
not have been heard on the merits because the petitioner failed to exhaust his
administrative remedies. (Id. at p. 4.)
       The Court of Appeal concluded that the trial court had properly considered the
petition on the merits. While acknowledging that inmates must exhaust available
administrative remedies before filing a petition in the superior court, the court noted that
“ ‘the doctrine of exhaustion of administrative remedies has not hardened into inflexible
dogma. [Citation.] It contains its own exceptions, as when the subject matter of the
controversy lies outside the administrative agency’s jurisdiction [citation], when pursuit
of an administrative remedy would result in irreparable harm [citations], when the
administrative agency cannot grant an adequate remedy [citations], and when the
aggrieved party can positively state what the administrative agency’s decision in his
particular case would be.’ (Ogo Associates v. City of Torrance (1974) 37 Cal.App.3d
830, 834.)” (In re Hudson, supra, 143 Cal.App.4th at p. 7.)
       As relevant to the appeal before it, the Hudson court agreed that the regulations
required an inmate or parolee to submit an appeal to the third level review before seeking
relief from the court, but noted that the regulations “do not specify how the third level of
review is reached in the event that the second level of review is never undertaken [by the
agency].” (In re Hudson, supra, 143 Cal.App.4th at p. 8.) It therefore concluded that
Hudson had exhausted his administrative remedies: “DAPO did not undertake the second
level review process and the applicable regulations do not specify what procedures a
parolee is to follow in the event of DAPO inaction. Admittedly, Hudson’s initial
administrative appeal did not focus precisely on the disputed parole conditions.
Nevertheless, Hudson did contest the imposition of the special conditions within his
appeal and there is nothing in the record indicating that DAPO provided Hudson with any
type of followup response. [Footnote omitted.] Accordingly, we agree with the trial




                                             14
court that Hudson exhausted his administrative remedies and we now proceed to the
merits of the appeal.”7 (Ibid.)
       The present case is analogous to In re Hudson. Like the petitioner in Hudson,
Fricks submitted a response to a rejection of his appeal at the second level, to which the
CDCR did not reply. The applicable regulations do not provide any procedures to be
followed in the event of CDCR inaction, and thus Fricks had no avenue for proceeding to
a third level review. Accordingly, in view of the CDCR’s inaction at the second level—
i.e., its failure to either “accept,” “reject,” or “cancel” Fricks’s second level appeal—we
conclude that Fricks exhausted his available administrative remedies, and his petition
should have been heard on the merits.
       We add a final note concerning Fricks’s letter to the appeals office in Sacramento.
The Attorney General asserts that Fricks submitted this letter instead of submitting a
proper second level review, thus improperly attempting to circumvent the appeals
process. As our earlier discussion implies, Fricks’s letter to the appeals office was in
addition to, not instead of, a resubmission at the second level of review. Thus, while
Fricks’s letter to the appeals office may have been superfluous, it was not disqualifying.
       4. Fricks Is Entitled to the Issuance of a Writ of Mandate.
       Fricks captioned his petition in this court a petition for writ of habeas corpus, but
the relief Fricks seeks is more properly available by petition for writ of mandate.
However, “[t]he label given a petition, action or other pleading is not determinative;
rather, the true nature of a petition or cause of action is based on the facts alleged and
remedy sought in that pleading.” (Escamilla, supra, 141 Cal.App.4th at p. 511.) Thus,
when a petition for writ of habeas corpus alleges facts that would support its
consideration as a petition for writ of mandate, a court is “not precluded on appeal from
considering that pleading to be a petition for writ of mandamus.” (Ibid.)



7
      On the merits, the court concluded that the special conditions of probation were
reasonable and appropriate, and thus it reversed the trial court’s order granting the writ of
habeas corpus. (In re Hudson, supra, 143 Cal.App.4th at p. 11.)

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       In the present case, Fricks has alleged facts in this petition for writ of habeas
corpus that support its consideration as a petition for writ of mandate. We thus exercise
our discretion to treat it as such. (See Escamilla, supra, 141 Cal.App.4th at p. 511
[“B]ecause the question of whether [the petition for writ of habeas corpus] can or should
be considered to be a petition for writ of mandamus is ‘an issue of law not turning on
disputed facts’ and involves an important question of public policy, we exercise our
discretion to consider and decide that question even though [petitioner] did not raise it
below.”].)
                                      DISPOSITION
       The petition for writ of habeas corpus, which we deem a petition for writ of
mandate, is granted. The matter is transferred to the superior court, which is directed to
consider the merits of Fricks’s petition seeking return of property. The superior court
shall appoint Fricks’s current appellate counsel, Rich Pfeiffer, to represent Fricks on
remand.
       NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS




                                                  EDMON, P. J.

We concur:




                     LAVIN, J.




                     HOGUE, J.*

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


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