San Chez v. Superior Court In and For Los Angeles County

Decision Date08 August 1957
Citation153 Cal.App.2d 162,314 P.2d 135
CourtCalifornia Court of Appeals Court of Appeals
PartiesBetty Jo SAN CHEZ, Petitioner, v. SUPERIOR COURT of the State California IN AND FOR the COUNTY OF LOS ANGELES, Respondent. Belmont J. San Chez, Real Party in Interest. Civ. 22480.

McLaughlin & Casey, James A. McLaughlin, Los Angeles, for petitioner.

Guy E. Ward, Beverly Hills, and Roger Bentley, Los Angeles, for real party in interest.

RICHARDS, Justice pro tem.

Petitioner seeks a writ of mandate to order the respondent court to vacate an order sustaining objections to certain questions in a deposition, and to direct that they be answered.

Petitioner is the plaintiff in a separate maintenance action against the defendant, the real party in interest herein, which action is grounded on a general allegation of the infliction of 'grievous mental and physical suffering'. No specific acts of cruelty are alleged nor does the complaint charge the defendant with adultery. Upon the taking of the defendant's deposition he refused to answer certain questions touching upon his adulterous conduct with a named person and with other unnamed persons. The matter was certified to the respondent court and the defendant's objections were sustained. The respondent court made no return to the alternative writ, and although the real party in interest filed an opposition to the granting of the alternative writ, he did not appear at the hearing thereon.

Evidence of acts of adultery or adulterous conduct falling short of actual adultery is admissible to show an adulterous disposition in support of a general charge of cruelty. 16 Cal.Jur.2d p. 323; Van Camp v. Van Camp, 53 Cal.App. 17, 22, 199 P. 885; Taylor v. Taylor, 82 Cal.App.2d 657, 659, 186 P.2d 1015; Tompkins v. Tompkins, 83 Cal.App.2d 71, 76, 187 P.2d 840; Nieri v. Nieri, 103 Cal.App.2d 208, 211, 229 P.2d 126.

The principal question involved is whether the provisions of Code of Civil Procedure sec. 1019 apply to actions for separate maintenance. That section provides: 'When in an action of divorce adultery is charged * * * and the person with whom such adultery is alleged to have been committed * * * is named in any of the pleadings, a copy of such pleadings must be personally served on such named person * * *.'

In several cases in which adultery was charged in divorce actions antedating the enactment of Code of Civil Procedure sec. 1019, there is no intimation that the corespondent was entitled to any notice of the proceeding so as to have the right to appear and be heard in the action. Brenot v. Brenot, 102 Cal. 294, 36 P. 672; Evans v. Evans, 41 Cal. 103; Van Horn v. Van Horn, 5 Cal.App. 719, 91 P. 260. It appears to be commonly accepted that, in the absence of statute, the corespondent in a suit for divorce on the ground of adultery is neither a necessary nor proper party (17 Am.Jur. p. 483; 7 Enc.Pl. & Pr. 59) and that, in the absence of statute, the corespondent has no right to intervene in order to protect his or her reputation. Leland v. Leland, 319 Ill. 426, 150 N.E. 270; Howell v. Harriff, 87 Kan. 389, 124 P. 168; Lickle v. Boone, 187 Md. 579, 51 A.2d 162, 170 A.L.R. 156. Hence we conclude that notice to a corespondent in an action in which adultery is charged is wholly a statutory requirement.

An 'action of divorce' has for its objective the dissolution of the marriage; whereas the objective of an action for separate maintenance is to secure provision for permanent support and maintenance without dissolving the marriage. An action for separate maintenance based on the ground of cruelty in not 'an action of divorce [in which] adultery is charged'. See Jonitz v. Jonitz, 25 N.J.Super, 544, 96 A.2d 782, 786. Code of Civil Procedure sec. 1019 in terms limits the duty of serving a copy of the pleadings on a person named as a corespondent to an action for divorce. An extension of the purpose of the section to actions for separate maintenance must result from legislative action and not judicial interpretation. We have nor overlooked Monroe v. Superior Court, 97 Cal.App.2d 470, 218 P.2d 136, nor Klemmer v. Klemmer, 42 Cal.App. 618, 187 P. 85, each of which was an action for divorce and not for separate maintenance.

Contrary to a contention of the real party in interest, there does not appear to be a problem of self-incrimination involved, as adultery per se is not a public offense. There must be a living 'together in a state of cohabitation and adultery' (Pen.Code, secs. 269a and 269b). Adultery alone or...

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10 cases
  • Zonver v. Superior Court of Los Angeles County
    • United States
    • California Court of Appeals
    • 12 Marzo 1969
    ...he brought along 'a week's dirty laundry with women's underclothes * * *'3 Mrs. Zonver relied chiefly on San Chez v. Superior Court, 153 Cal.App.2d 162, 165, 314 P.2d 135, 138. In that case it was held that a defendant-husband in a separate maintenance action had to answer questions concern......
  • Cardew v. Cardew
    • United States
    • California Court of Appeals
    • 25 Mayo 1961
    ...of adulterous conduct, falling short of actual adultery, is admissible in support of a charge of cruelty. San Chez v. Superior Court, 153 Cal.App.2d 162, 164, 165, 314 P.2d 135, and cases there cited; 16 Cal.Jur.2d 323. The pretrial order states that the 'wife contends there is adulterous c......
  • Ex parte Lane
    • United States
    • United States State Supreme Court (California)
    • 28 Junio 1962
    ...P. 318; Ex parte Thomas, 103 Cal. 497, 37 P. 514; White v. White, 82 Cal. 427, 449, 23 P. 276, 7 L.R.A. 799; San Chez v. Superior Court, 153 Cal.App.2d 162, 165(6), 314 P.2d 135.) It is the therefore clear that the Legislature has determined by implication that such conduct shall not be cri......
  • In re Johnson
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Eastern District of New York)
    • 26 Septiembre 1968
    ...opposed to the tort of adultery) constitutes adultery. E. g., California Penal Code, §§ 269a and 269b; San Chez v. Superior Court, 153 Cal.App.2d 162, 165, 314 P.2d 135, 137, 138 (1957). In others, a state policy of forgiveness exists if the parties "later intermarry." E. g., In re Briedis,......
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