Morales v. Superior Court

• Citation: 99 Cal.App.3d 283,160 Cal.Rptr. 194
• Court: California Court of Appeals
• Decision Date: 29 November 1979
• Parties: James B. MORALES, Jr., et al., Petitioners, v. The SUPERIOR COURT OF KERN COUNTY, Respondent. Richard Lee SMITH et al., Real Parties in Interest. Civ. 5008.

Page 194

160 Cal.Rptr. 194

99 Cal.App.3d 283

James B. MORALES, Jr., et al., Petitioners, v. The SUPERIOR COURT OF KERN COUNTY, Respondent.

Richard Lee SMITH et al., Real Parties in Interest.

Civ. 5008.

Court of Appeal, Fifth District, California.

Nov. 29, 1979.

Hearing Denied Feb. 7, 1980.

Craig G. McIntosh, [99 Cal.App.3d 285] Miller, Katz, Harlem & Dixon, Inc., San Francisco, for petitioners.

[99 Cal.App.3d 286] Clifford, Jenkins & Brown, King, Eyherabide, Anspach, Friedman & Robinson, Bakersfield, Hurlbutt, Clevenger, Long & Vortmann, Visalia, for real parties in interest.

OPINION

FRETZ, Associate Justice. ^*

STATEMENT OF THE CASE

Petitioner James Morales seeks a writ of mandate commanding respondent court to vacate its order compelling his to answer interrogatories. The interrogatories were propounded by real party Teresi Trucking, Inc., one of several defendants in a wrongful death action brought by petitioner and his three minor children to recover damages resulting from the death of Phyllis Morales, petitioner's late wife. For the reasons to be explained, we have concluded that the interrogatories must be further limited, but that as so limited, they must be answered by petitioner.

Interrogatory No. 2 demands that the petitioner state the name, current address and telephone number of each woman he dated during his marriage to Phyllis Morales and the calendar dates upon which he saw these women socially. Interrogatory No. 3 asks whether during the period of his marriage to Phyllis Morales the petitioner had sexual relations with women other than Phyllis Morales and if so demands that he state the names, current addresses and telephone numbers of each woman with whom he had sexual relations during that time and the date or dates of the sexual relations with each woman so identified.

The petitioner objected to each of these interrogatories "on the grounds that it cannot possibly lead to any relevant discoverable evidence and it may violate the rights of privacy of certain individuals."

In the trial court the real party in interest filed a motion for an order compelling answers to the interrogatories. The motion was granted with the following limitation: " . . . Answers limited to contacts with other women within two years before decedent's death."

The question before us is whether a plaintiff in a wrongful death action may be compelled to disclose information regarding his extramarital sexual activities during the period of his marriage to decedent. This question has not previously been answered in California.

The petitioner bases his request upon a right to privacy in sexual relations and the right to associational privacy. In our examination of this question we follow the reasoning and apply the tests of Britt v. Superior Court (1978) 20 Cal.3d 844, 143 Cal.Rptr. 695, 574 P.2d 766. In that case, the Supreme Court reversed the order of the superior court compelling plaintiffs to disclose names and identities of associations and persons with whom the plaintiffs had affiliated. The case involved a group of homeowners who sued the San Diego Unified Port District, which controlled the San Diego airport, for diminution of property values, personal injuries and emotional disturbance allegedly caused by the operation of the airport. The court found that the right of associational privacy is not absolute but that the government bears a heavy burden in demonstrating the justification for compelling disclosure. The court went on to find that to justify impairment of the right of privacy, there must be a present compelling state interest.

The Supreme Court held that when a litigant invokes judicial assistance to discover, in the context of civil litigation, matters which are within a constitutionally protected zone of privacy, such discovery "must be justified by a compelling state interest and must be precisely tailored to avoid undue infringement of constitutional rights." (Id., at pp. 864-865, 143 Cal.Rptr. at p. 708, 574 P.2d at p. 779.)

We direct our attention first to relevancy.

1. THE INQUIRY IS RELEVANT TO THE ISSUE BEFORE THE TRIAL COURT.

In Benwell v. Dean (1967) 249 Cal.App.2d 345 at page 349, 57 Cal.Rptr. 394, at page 398, the court stated:

" . . . the statutory and exclusive measure of damages in actions for wrongful death is that embodied in Code of Civil Procedure section 377, which is 'such damages * * * as under all the circumstances . . . may be just.' (Bond v. United Railroads, 159 Cal. 270, 276, 113 P. 366 . . . ; Duclos v. Tashjian, 32 Cal.App.2d 444, 453, 90 P.2d 140.) Damages under the provisions of this section 'are measured by the financial benefits the heirs were receiving at the time of death, those reasonably to be expected in the future, and the monetary equivalent of loss of comfort, society and protection' (Stathos v. Lemich, 213 Cal.App.2d 52, 56, 28 Cal.Rptr. 462, 465 . . . ); as, stated in Cervantes v. Maco Gas Co., 177 Cal.App.2d 246, 2 Cal.Rptr. 75, such damages are 'what the heirs received at the time of the death of the decedent and what the heirs would have received had the decedent lived.'

(P. 251, 2 Cal.Rptr. (75), 79.) With respect to the loss of comfort, society and protection, this element of pecuniary loss recoverable under section 377 has an actual value which cannot be compensated for by merely nominal damages. (Griott v. Gamblin, 194 Cal.App.2d 577, 579, 15 Cal.Rptr. 228; Duclos v. Tashjian, supra.)"

The question of whether extramarital sexual conduct affected the relationship is one of fact to be decided by the trier of fact. Evidence of such conduct is relevant to the nature of the personal relationship and thus as to whether there was any loss of love, companionship, comfort, affection, society, solace, moral support or enjoyment of sexual relations.

There is evidence that this is not simply a "fishing expedition." In the deposition of Cynthia Morales, who married petitioner after decedent's death but who is now divorced from him, there is an indication that during his marriage to decedent petitioner dated and "possibly had frequent sexual relations" with other women.

However, not all such evidence is necessarily relevant. Some limitation of the time to be covered by the discovery may properly be required. What happened 10 years before the decedent's death may or may not have relevance. This is so because the appropriate inquiry in the wrongful death case is the nature of the relationship at date of death. We do not attempt to say What period is proper. What is proper in a given case depends upon the facts of the case. The two-year limitation imposed by the trial court in this case does not appear to us to be unreasonable or improper. Of course, we are discussing this matter for purposes of discovery only. As observed in Fults v. Superior Court (1979) 88 Cal.App.3d 899 at page 902, 152 Cal.Rptr. 210 at page 212. " . . . relevancy at trial and relevancy for purposes of discovery are two different things. 'An appellate court cannot reverse a trial court's grant of discovery under a "relevancy" attack unless it concludes that the answers sought by a given line of questioning cannot as a reasonable possibility lead to the discovery of admissible evidence or be helpful in preparation for trial.' (Pacific Tel. & Tel. Co. v. Superior Court (1970) 2 Cal.3d 161, 173, 84 Cal.Rptr. 718, 727, 465 P.2d 854, 863; Code Civ.Proc., §§ 2016(b), 2031.)" (Fults v. Superior Court, supra, 88 Cal.App.3d 899, 902, 152 Cal.Rptr. 210, 212.)

This does not end our inquiry. "When compelled disclosure intrudes on constitutionally protected areas, it cannot be justified solely on the ground that it may lead to relevant information." (Id., at p. 904, 152 Ca. Rptr. at p. 213; see also Shelton v. Tucker (1960) 364 U.S. 479, 483, 485, 81 S.Ct. 247, 5 L.Ed.2d 231.)

Our second inquiry then is whether one or more constitutionally protected zones of privacy are involved.

2. THERE IS A PROTECTED RIGHT OF PRIVACY UNDER THE FACTS OF THIS CASE.

] The right of privacy is secured by article I, section 1, of the California Constitution. This was added to the California Constitution in 1974. However, privacy was identified as a right protected by the federal Constitution in Griswold v. Connecticut (1965) 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510 and its application to sexual matters has been steadily expanded (see Eisenstadt v. Baird (1972) 405 U.S. 438, 92 S.Ct. 1029, 31 L.Ed.2d 349; Roe v. Wade (1973) 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147). The right of privacy in sexual matters is not limited to the marital relationship (Eisenstadt v. Baird, supra, 405 U.S. 438, 92 S.Ct. 1029, 31 L.Ed.2d 349). As was said in Fults v. Superior Court, supra, 88 Cal.App.3d 899 at page 904, 152 Cal.Rptr. 210 at page 213: " . . . (T)hese interrogatories deal with the well established 'zone of privacy,' one's sexual relations. (Eisenstadt v. Baird (1972) 405 U.S. 438, 92 S.Ct. 1029, 31 L.Ed.2d 349; Griswold v. Connecticut, supra, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510; Baird v. Lynch (W.D.Wis.1974) 390 F.Supp. 740, 752; Mindel v. United States Civil Service Commission (N.D.Cal.1970) 312 F.Supp. 485, 488.)"

The right to associational privacy was recognized in Britt. "As both the United States Supreme Court and this court have observed time and again, however, First Amendment freedoms, such as the right of association, 'are protected not only against heavy-handed frontal attack, but also from being stifled by more subtle governmental interference.' (Bates v. Little Rock (1960) 361 U.S. 516, 523, 80 S.Ct. 412, 416, 4 L.Ed.2d 480; see e. g., White v. Davis (1975) 13 Cal.3d 757, 767, 120 Cal.Rptr. 94, 533 P.2d 222) Indeed, numerous cases establish that compelled disclosure of an individual's private associational affiliations and activities, . . . frequently poses one of the most serious threats to the free exercise of this constitutionally endowed right." (Britt v. Superior Court, supra, 20...