San Chez v. Superior Court

RICHARDS, J. 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

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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].)