Everett v. Everett
| Decision Date | 19 January 1984 |
| Citation | 150 Cal.App.3d 1053,201 Cal.Rptr. 351 |
| Parties | Dale Andre Lee EVERETT, by his Guardian Ad Litem, Caryl Warner, Plaintiff and First Appellant, v. Chad EVERETT, Defendant and Respondent. Sheila Scott, Plaintiff and Second Appellant. Civ. 68778. |
| Court | California Court of Appeals Court of Appeals |
Caryl Warner, Lorraine C. Gollub, and Joan Celia Lavine, Jeffrey Lee, Los Angeles, for plaintiff and first-appellant.
Sheila Scott in pro. per.
John K. Van de Kamp, Atty. Gen., S. Clark Moore, Asst. Atty. Gen., Norman H. Sokolow and Andrew D. Amerson, Deputy Attys. Gen., as amicus curiae on behalf of plaintiffs and appellants.
Mitchell, Silberberg & Knupp, Edward M. Medvene, Marilyn E. Levine and Michael Barclay, Los Angeles, for defendant and respondent.
In this appeal, we affirm a judgment following a jury verdict finding the defendant and respondent not to be the father of the minor child.
In September 1973, appellant Sheila Scott (Scott) filed a paternity action (referred to hereinafter as the "original action") against respondent Chad Everett (Everett) alleging him to be the father of her minor child Dale Everett (Dale). Following a five-day jury trial, the parties settled the original action, stipulating to a judgment that provided, among other things, that Everett was not the father of Dale. Scott waived her right to move for a new trial and her right to appeal. Everett agreed to pay Scott a lump sum of $5,000 and her attorney's fees of $27,500, and to purchase an annuity policy which would generate monthly payments of $275 to Scott for the benefit of Dale until he reached 18 years of age. Dale was neither party to the original action nor to the settlement.
In July 1974, Dale's guardian ad litem brought the instant action against both Scott and Everett under Civil Code section 231 1 to establish that Everett was his natural father. In the second count, Dale alleged that the prior settlement between his mother and Everett in the original action was the product of collusion 2 and that the settlement was not binding on him. He further alleged that the judgment in the original action did not affect his rights because no guardian ad litem had been appointed for him and that the compromise of his claims had not been approved by the trial court.
The trial court sustained Everett's demurrer to the complaint on the ground that the original action was res judicata on the issue of whether Everett was Dale's father and granted judgment in favor of Everett. Division Five of this District reversed, holding that the compromise judgment, although valid between the parties, had not been approved by the court pursuant to the provisions of Probate Code section 1431 3 and was therefore not binding upon the minor. (Everett v. Everett (1976) 57 Cal.App.3d 65, 69, 129 Cal.Rptr. 8 ("Everett I "); see also DeSylva v. Ballentine (1950) 96 Cal.App.2d 503, 510, 215 P.2d 780.)
In 1978, Dale's action was resumed in the superior court. Over Dale's objection, Everett presented the testimony of Judge Benjamin Landis, the trial judge in the original action, who testified that he had approved the settlement as being in the best interests of the minor. Concluding that the settlement had not been the result of collusion, coercion or other infirmity of Dale's rights, and had been approved by the court, and that it was not necessary to file a petition pursuant to Probate Code section 1431, the trial court dismissed Dale's action. This Division reversed, holding that the minor's claims were not barred by the original action since he had not been represented by a guardian ad litem in that action. We held that the trial court erred in concluding that (1) a petition pursuant to Probate Code section 1431 was unnecessary and (2) that the earlier stipulated judgment was binding on Dale. (Everett v. Everett (September 7, 1979) 2 Civ. 55356 (unpub. opn.) at p. 3 ("Everett II").)
Dale's action was remanded to the superior court for trial and Scott was realigned as a party-plaintiff. The matter proceeded to trial on October 19, 1981. Subsequently, the jury returned a verdict in favor of Everett, finding him not to be Dale's father.
Dale's motion for a new trial was denied and he filed a timely notice of appeal.
From late 1970 through mid-1972, Scott worked intermittently as an extra on the set of the television series "Medical Center." During this time, she met Everett, who at the time played the leading role of "Dr. Joe Gannon." 5 Scott testified that she worked on the series a total of approximately 30 times and that she had a six-month hiatus from the series between December 1971, and July 1972. In 1972, she worked on the series only two days. She testified that during the period she worked on the series an intimate relationship developed between her and Everett. Everett specifically requested Scott as an extra a number of times, invited her to dinner on several occasions, was publicly affectionate towards her, and engaged in sexual activity short of intercourse with her in his dressing room on the set. Scott further testified that this intimate relationship culminated in sexual intercourse on August 16, 1972, when Everett took Scott home to her apartment, and that as a result, she conceived Dale. She also testified that she did not engage in sexual intercourse with any other man in 1972.
On or about August 22, 1972, Scott took her son, Glen, by a prior marriage, on a cruise to Greece. Upon her return September 21, 1972, she learned of her pregnancy and contacted Everett, who was initially pleased and very understanding but later refused to admit paternity.
Throughout her testimony, Scott referred to her 1972 appointment book or diary to refresh her recollection as to dates, events, appointments, and various other notations. One notation which appeared regularly was the word "Siam," which, Scott testified, meant the onset of her menstrual period. According to her February 1973 deposition, 6 Scott entered the word "Siam" on the day she began menstruating, although at trial she denied routinely entering it on the first day. According to entries in the diary, Scott's menstrual period in the months preceding conception began on June 18, July 10, and August 7. In her February 1973 deposition and at trial, she testified that she had a regular 29-day cycle and that her period generally lasted five to six days.
On cross-examination, it was revealed that the dates of June 18, July 10, and August 7, were not the only dates the word "Siam" appeared in the diary. On the date July 17, 29 days after June 18, the word "Siam" appeared in blue ink, and was crossed out in green ink. The entries of "Siam" that appeared on July 10 and again on August 7 were also written in green ink. In addition, the phrase "Siam at 20th begins" also appeared on July 17 for which Scott had no explanation nor even any recollection writing. 7 Finally, the notation "two months" appeared in the diary on October 12, which Scott testified during her February 1973 deposition meant she was two months pregnant at the time.
The essence of Scott's testimony concerning the events of August 16, 1972, was that Everett drove Scott home at about 5:30 p.m. and accompanied her into her apartment as her son Glen was leaving. According to Scott's testimony, Everett stayed in her apartment that night until 10 or 10:30 p.m. and during that 4 1/2-to-5-hour period they engaged in sexual intercourse, had some drinks and looked at her paintings. After Everett left, Glen returned at 11 p.m.
Everett's testimony to the events and circumstances surrounding Scott's pregnancy and the relationship of the parties conflicted sharply with Scott's testimony. Everett testified that he had never specifically requested Scott as an extra, that he and Scott had never engaged in sexual intimacies either on or off the "Medical Center" set, and that he had never taken her to lunch or dinner or been off the set with her at any time (other than on August 16).
Everett testified that on August 16, 1972, he gave Scott a ride home from the set after work and accompanied her to her apartment to look at some of her artwork as possible replacements for items which had been destroyed in a fire at his home. On the way to the apartment, Scott introduced Everett to Glen and then Everett and Scott proceeded to the apartment. Everett said that he stayed in Scott's apartment approximately 15 minutes. During that time, he looked at her paintings. He expressly denied having any sexual contact with Scott during that time and also denied having drinks with her or discussing anything other than her paintings. Everett further testified that after leaving Scott's apartment, he went shopping for his wife and was home by 8:30 p.m.
Everett explained that at the meeting at which Scott told him she was pregnant, she stated her plan to claim him as the father and that it would cost him some money. He denied the possibility that the child could be his since he and Scott had never had intercourse. Scott then began making threatening phone calls. At a meeting in December 1972, at which Scott, Everett, and Everett's attorney were present and with Scott's attorney's presence by telephone, Scott threatened to take the story to the newspapers if Everett did not give her more money than the amount offered as a "nuisance offer." 8 Everett testified no one ever suggested an abortion.
Evidence of the 1973 settlement was not admitted at trial. None of the witnesses were permitted to refer to it before the jury. In addition, no evidence was admitted concerning additional blood tests, Everett's reluctance to take a HLA paternity blood test, and his refusal to take additional tests.
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